Foundation Securities (NZ) Limited v Direct Labour Services Limited (Correction decision) HC Auckland CIV- 2006-404-4391

[2007] NZHC 1656

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV- 2006-404-4391

IN THE MATTER OF     the Companies Act

BETWEEN  FOUNDATION SECURITIES (NZ) LIMITED

Plaintiff

AND  DIRECT LABOUR SERVICES LIMITED First Defendant

AND  CASE BOREHAM ASSOCIATES LIMITED

Second Defendant

Hearing:         15 December 2006

Appearances: S McAnally for plaintiff

Mr Denholm for first and second defendants

Mr Laurent for Ascent Business Directions

Judgment:      23 February 2007 at 4 p.m.

JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE [Correcting earlier Judgment]

This judgment was delivered by me on

23.02.2007 at 4 pm, pursuant to
Rule 540(4) of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:

Counsel:

Keegan Alexander, P O Box 999, Auckland (S McAnally) G Denholm, P O Box 5080, Auckland

Laurent   Law,   Suite   4,   1st    Floor,   93   Dominion   Road,   Mt   Eden,   Auckland   –   by   email:

[email protected]
Copy:

Foy & Halse, P O Box 26-218, Epsom, Auckland
Mr W Manning, P O Box 5844, Wellesley Street, Auckland

FOUNDATION SECURITIES (NZ) LIMITED V DIRECT LABOUR SERVICES LIMITED AND ANOR HC AK CIV- 2006-404-4391  23 February 2007

[1]      Counsel  have  drawn  to  my  attention  that  there  two  problems  with  my judgment.  First, there is a requirement that the appointment that the liquidators be appointed as joint and several liquidators of the defendant companies.  Without such direction s 242 requires the liquidators to act only jointly.

[2]      Rule 12 provides:

12    Correction of accidental slip or omission

(1) If any judgment or order contains a clerical mistake or error arising from any accidental slip or omission, whether the mistake, error, slip, or omission was made by an officer of the Court or not, or if any judgment or order is so drawn up as not to express what was actually decided and intended, the judgment or order may be corrected by the Court, or, where the judgment or order was made by a Registrar, then by the Registrar.

(2) The correction may be made by the Court or the Registrar, as the case may be, of its or his own motion or on an interlocutory application made for that purpose.

[3]      It was always my intention that the liquidators be able to act jointly and severally.   Pursuant to R 12 I will correct my judgment and re-issue it with the correction included.

[4]      The second matter concerns the time of the judgment.  I signed the judgment

24 January 2007.   In the judgment itself, at paragraph 31 I ordered that the appointment of the liquidators was to take place at 12 p.m. on 24 January 2007.   The judgment was not, however, delivered until 1 February 2007 at 4.30 p.m.  This last date and time is what the Registrar endorsed on it.

[5]      It did not anticipate that the judgment might not be delivered on the date I signed it.  That is what happened, with the consequence that the judgment took effect from the delivery time which the Registrar endorsed on it, 1 February 2007, and not the date I signed it:  R 540(5).   The point is important because the authority of the liquidators dates from when the judgment takes effect.   The judgment as it stands, purports to appoint them at an earlier date than the date that the judgment actually takes effect.   In order to ensure that the judgment took effect from 24 January 2007,

it ought to have included a direction pursuant to R 540(4) that it was to be endorsed with a delivery time of 24 January 2007.   The unsatisfactory result  is that by a combination of the terms of the judgment and the effect of the rules, the date when the liquidators were appointed is unclear.   That is an undesirable result. I consider that it requires to be corrected.  I will do so by correcting the text of my judgment so that the date of appointment of the liquidators becomes 1 February 2007 and by

making a direction that the delivery date of the judgment is to be 1 February 2007.

J.P. Doogue

Associate Judge