Fisher International Trustee v Waterloo Building Limited HC Auckland CIV 2008-404-5947

[2008] NZHC 2609

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2008-404-5947

BETWEEN  FISHER INTERNATIONAL TRUSTEE & ORS

Applicant

AND  WATERLOO BUILDING LIMITED Respondent

Hearing:         3 October 2008

Appearances: Mr Enright for the applicant

No appearance for the respondent

Judgment:      3 October 2008

ORAL JUDGMENT OF ASSOCIATE JUDGE DOOGUE

Counsel:

Mr Enright, Auckland

FISHER INTERNATIONAL TRUSTEE & ORS V WATERLOO BUILDING LIMITED HC AK CIV 2008-

404-5947  3 October 2008

[1]      The respondent purported to serve a statutory demand under s 289 on the various applicants on 28 August 2008.  It did so by means of sending an email to a firm of solicitors, Kirkland Enright Lawyers.

[2]      The application that has been filed takes the point (as had Mr Kirkland of Kirkland Enright in an email he sent back to the respondent 9 September 2008) that service of the statutory demand had not been regularly carried out either as to where the demand was served and as to the means by which it was served.

[3]      The applicant has filed extensive affidavits which appear to show that there was no basis at all for the respondent serving the 289 statutory demand  in the first place.

[4]      Section  290  of  the  Companies  Act  empowers  the  Court  to  set  aside  a statutory demand.   It can be set aside on the grounds that if there is a substantial dispute, there is a cross-claim etc or ‘on other grounds’.  Even though the statutory demand may not have been validly served it can probably be set aside under this procedure by virtue of s 290 (4)(c) the ‘other grounds’ provision.  Assuming that it was validly served though and the applicant has satisfied the grounds in subsection 4 (a) and (b).

[5]      Surprisingly no appearance has been made by the respondent today.   The applicant has filed proof of service.  Proof of service has been filed in the form of a an affidavit of service sworn by Anthony David Cowley sworn 15 September 2008.

[6]      In my view it is appropriate to make the orders sought and I make an order setting aside the statutory demand.

[7]      The applicant also seeks costs on an indemnity basis.  The grounds on which it does so are:

a)        Absence  of  contractual  relationship  between  the  second  to  fourth applicants in Waterloo;

b)        Absence of any corroborating evidence as to the alleged ‘debt’;

c)       Invoking of statutory demand in procedure and circumstances where substantial debt already owed by Waterloo to Fisher, and Waterloo on notice of that debt;

d)Total failure by Waterloo to serve evidence in reply, coupled with its inadequate serve.

[8]      I take the view in the exceptional circumstances of this case an order of indemnity costs is required and also an order against Mr Brent Douglas Cload the officer of the respondent company who executed the statutory demand on behalf of

the respondent.  The amount of costs ordered is $11,000 including disbursements.

J.P. Doogue

Associate Judge