Goodman v Attorney-General

[2016] NZHC 1668

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-1351 [2016] NZHC 1668

UNDER	s 269(5)(b) of the Companies Act 1993
IN THE MATTER	of an application to vest escheated land in the plaintiff
BETWEEN	JOHN LEITH GOODMAN Plaintiff
AND	ATTORNEY-GENERAL Defendant

Hearing:	21 July 2016
Appearances:	JL Goodman, plaintiff in person No appearance entered for defendant
Judgment:	21 July 2016

(ORAL) JUDGMENT OF FAIRE J

This judgment was delivered by me on 21 July 2016 at 10:15 am pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

To:       JL Goodman, Auckland

Senior Solicitor, Treasury, Wellington

Goodman v Attorney-General [2016] NZHC 1668 [21 July 2016]

[1]      The plaintiff seeks an order that the two-fifths share of the land comprised in Lot 2, Deposited Plan 162639, Certificate of Title 98A/383 (North Auckland) be vested in himself.

[2]      The  Certificate  of Title  currently  records  that  the  two-fifth  share  of  the relevant title is vested in Wilding Park Estate Ltd, which I shall refer to as “the Company”.

[3]      The plaintiff was at all material times the beneficial owner of 999 shares in the Company.  His wife was the beneficial owner of the remaining one share out of a total of 1,000 shares in the Company.

[4]      The  Company  was  placed  into  liquidation.    The  Official  Assignee  was appointed liquidator.   The Official Assignee disclaimed the Company’s two-fifth share.

[5]      Following the disclaimer the interest in the subject property vests in the

Crown re David James & Co (in liquidation)1.

[6]      I directed service of these proceedings on the Solicitor General in accordance with s 16 of the Crown Proceedings Act 1950.

[7]      The plaintiff has now received a letter from the Treasury which provides:

1.We acknowledge receipt of the following documents that you served on the Attorney-General and the Solicitor General:

a.        Notice of proceeding;

b.        Statement of claim;

c.        Affidavit of John Leith Goodman in support; and d.        Minute of Justice Faire.

1   David James & Co [1991] 1 NZLR 219 at 223, (27).

2.The Crown Law Office has passed those documents to the Treasury as the Treasury is responsible for dealing with property which has vested in the Crown.

3.We  are  satisfied  that  the  Official Assignee,  as  liquidator  of  the Company, disclaimed the Company’s two-fifths interest in the property at 23 Wilding Avenue, Northcote described in Certificate of Title NA 129D/172 (“the Property”).

4.        We confirm that:

a.Following the Official Assignee’s disclaimer the ownership interest in the Property formerly held by the Company that ownership interest passed to the Crown.

b.The Crown has no interest in claiming or exercising the ownership interest in the Property.

c.The Crown does not object to the Court making an order that the former ownership interest of the Company in the Property be vested in John Leith Goodman.

d.The Crown does to wish to be further served or otherwise involved  in  any  application  to  the  Court  for  the  vesting order and will abide the decision of the Court.

5.        Crown consents to this letter being provided to the Court.

[8]      The plaintiff has filed an affidavit in support of the statement of claim.  The full content of that affidavit I will not set out in this short judgment.  Suffice to say that he and his wife advanced to the company $99,000 for the purpose of acquiring the subject piece of land.  The reasons for the acquisition are set out in his affidavit. He points out that both he and his wife have suffered a substantial loss as result of the disclaimer by reason of the fact that the Company’s two-fifth share in the section was a valuable asset of the Company worth greatly in excess of the amount of the any debt owed by the Company.

[9]      In the circumstances he seeks an order pursuant to s 269(5) of the Companies

Act 1993 that the disclaimed property be vested in himself.

[10]     I am satisfied that the order sought in the statement of claim is appropriate and that accordingly a judgment should be entered for the plaintiff recording that the two-fifth share of the land comprised in Lot 2, Deposited Plan 162639, Certificate of Title 98A/383 (North Auckland) be vested in the plaintiff.  I so order.

[11]     Leave is reserved to apply if further orders are required to implement this judgment.

[12]     I note that while the street address in the plaintiff’s affidavit and the letter from the Treasury letter identify the property as 23 Wilding Avenue, the Treasury letter records a different identifier to that which appears on the title search produced

to the Court. This may require a correction of the order I make in this judgment.

JA Faire J