Genus Services Ltd v First Agenda Ltd HC Auckland CIV 2010-404-2556

[2010] NZHC 1807

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-002556

IN THE MATTER OF     The Companies Act 1993

BETWEEN  GENUS SERVICES LTD Plaintiff

ANDFIRST AGENDA LTD Defendant

Hearing:         24 August 2010

Appearances: M C Black for Plaintiff

C Orton (previously acting for Defendant, seeking leave to withdraw) Judgment:     24 August 2010

ORAL JUDGMENT OF ASSOCIATE JUDGE BELL

Solicitors/Counsel:

Craig Griffin & Lord (C N Lord), PO Box 9049, Auckland

Corban Revell Lawyers, PO Box 21 180, Henderson, Auckland

M C Black, PO Box 1984, Auckland

GENUS SERVICES LTD V FIRST AGENDA LTD HC AK CIV-2010-404-002556  24 August 2010

[1]      This matter was set down for this morning as a defended application for First

Agenda Ltd to be put into liquidation.

[2]      This morning Mr Orton appeared and sought leave to withdraw.   Leave is granted.

[3]      In the absence of any opposition, I am satisfied that  this company is unable to pay its debts in terms of the Companies Act and it is also just and equitable that an order be made that it be put into liquidation.

[4]      There is accordingly an order that First Agenda Ltd is put into liquidation. Iain McLennan and Boris Van Delden are appointed liquidators.

[5]      There is an order for costs to the plaintiff and supporting creditors of $7,112, and disbursements of $1,255.

[6]      The order is timed at 10:10 am.

[7]      There are two minor procedural matters.  The first is the way that the plaintiff has pleaded its statement of claim.   The plaintiff has not said expressly that the defendant is unable to pay its debts and that really ought to be pleaded in a statement of  claim.    I am  nevertheless  prepared  to  draw  the  inference  but  the  plaintiff’s solicitors ought to be aware that in statements of claim, that is a matter that does require express pleading.

[8]      The other matter is advertising.   I am satisfied from the evidence that the company is properly insolvent.  In particular, I take a serious view of the actions of the controlling shareholders in disposing of the major asset of the company without the approval of other shareholders.  The terms of that transaction are clearly to the prejudice of creditors.   If there were any creditors who were opposed to an order being made, I am quite confident that the directors of the company who had opposed the winding-up of the company would have taken steps to see that those creditors made their views known to the Court.  As it is, I am confident that the company is properly insolvent.  There are creditors who have no prospect of being paid under the

present state of affairs and the company ought to be wound up notwithstanding the

absence of advertising.  Advertising is accordingly dispensed with under the rules.

R M Bell

Associate Judge