Greenlees

[2013] NZHC 434

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CIV2013-443-000087 [2013] NZHC 434

IN THE MATTER OF     an application under s 284(1)(b) and s 329 of the Companies Act 1993

AND IN THE MATTER OF DEWES HOLDINGS LIMITED

BETWEEN  DONNA LOUISE GREENLEES Applicant

Hearing:         On the papers Counsel:  D Lester for applicant Judgment:     7 March 2013

JUDGMENT OF ASSOCIATE JUDGE ABBOTT

This judgment was delivered by me on 7 March 2013 at 4.30pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:

Geddes & Maciszek, PO Box 42059, Christchurch 8011

Counsel:

D Lester, Barrister, PO Box 9344, Christchurch 8149

DONNA LOUISE GREENLEES HC NWP CIV 2013-443-000087 [7 March 2013]

[1]      The applicant, Donna Louise Greenlees, is an insolvency practitioner who was appointed liquidator of Dewes Holdings Ltd on 12 March 2010 (the company).

[2]      The  company  was  solvent  at  time  of  liquidation.    Liquidation  had  been sought to reduce compliance costs as the company’s only activity was to hold 20 hectares of land.

[3]      The liquidator filed her final report on 21 July 2011 in anticipation that an in- specie distribution of assets to the company’s shareholders was underway.   This required registration of a discharge of mortgage, and transfer of a block of land. Through  oversight  the  conveyancing  documentation  was  not  signed  and  the discharge of mortgage and registration of the transfer of land were not completed, so that the mortgage remains on the title, and the title remains in the name of the company.

[4]      Following delivery of the liquidator’s final report, the company was struck off the companies register on 26 July 2011.  As such the liquidator no longer has legal capacity to sign the documents necessary to complete registration.

[5]      The liquidator has brought an application under Part 19 of the Companies Act

1993 for an order that  the company be reinstated[1]  to enable registration of the transfer and for the mortgage to be re-documented to show the shareholders as the new owners.

[1] Companies Act 1993, s 329.

[6]      The liquidator seeks orders:

(a)       Granting leave to commence this proceeding by way of originating application.[2]

[2] High Court Rules, r 19.5.

(b)      Dispensing with service.

(c)       Cancelling the liquidator’s final report.[3]

[3] Companies Act 1993, s 284(1)(b).

(d)Restoring Dewes Holdings Ltd (in Liquidation) to the register[4]  upon condition that the liquidator is to file all documents and pay all fees to the Registrar of Companies necessary to complete restoration, or otherwise required as a result of the restoration.

[4] Companies Act 1993, s 329.

(e)      Confirming the applicant as the liquidator of Dewes Holdings Ltd (in liquidation).

[7]      The liquidator does not seek any order as to costs. [8] The parties with a potential interest are:

(a)       The shareholders and directors of the company.

(b)      Westpac Bank which holds a mortgage over the land.

(c)      The Secretary of Treasury in relation to any property of the company at the time it was struck off.

[9]      The  application  for  leave  and  for  dispensation  with  service  is  made  in reliance on decisions of this Court in Re Durweston Properties Ltd[5]and Re Perron Duke Street 2 Ltd, McCullagh v the Registrar of Companies.[6]

[5] Re DurwestonProperties Ltd (1992) 6 PRNZ 95 (HC).

[6] Re Perron Duke Street 2 Ltd, McCullagh v the Registrar of Companies HC Auckland CIV-2011-404-1799, 6 May 2011.

[10]     I  accept  that  this  is  an  appropriate  case  to  bring  by way of  originating application.   I further accept that it is an appropriate case for dispensation with service and for dealing with the substantive application “on the papers”.   In this respect I follow the approach of this Court in Re Perron Duke Street 2 Ltd where the Court determined a similar application “on the papers” on the basis that it was just and equitable that the company should be restored to the Register.  In that case the

Court observed:[7]

[10]      However, r 19.5 High Court Rules provides that the Court may, in the interests of justice, permit a proceeding not mentioned in rr 19.2 to 19.4 to be commenced by originating application. The criteria for permitting an originating application  under the rule,  where  there is no  opposition, are broadly expressed. The respondents have been served and have indicated that they do not wish to be heard on the application. I am satisfied that it is not necessary in the interests of justice that, in respect of this application, there should be particularised pleadings or the availability of discovery and other interlocutory steps, for the proper determination of the issues.

[7] At [10].

[11]     I am satisfied on the evidence that all parties with an existing or potential interest are aware of and either consent to the application or abide the decision of the Court, that the restoration is necessary to permit transfer of the land as originally intended, and that no  purpose will be served  by requiring potentially interested parties to be served where there is no objection.[8]    In particular I note that Westpac will retain its interest under the mortgage in any event.

[8] Counsel has confirmed that the papers filed have been circulated to the interested parties.

[12]     I make orders as sought in the application. There is no order as to costs.

Associate Judge Abbott