Hayes v The Registrar of Companies

[2013] NZHC 1236

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2012-419-1743 [2013] NZHC 1236

IN THE MATTER             of an application under Part 18 of the High

Court Rules

IN THE MATTER             of Smartcare Services Group Limited

(struck off)

IN THE MATTER             of the Companies Act 1993 section 329 being an application to restore the company to the New Zealand register

BETWEEN  NICHOLAS JOHN HAYES liquidator of Hamilton as former liquidator of SmartCare Services Group Ltd (Struck off)

Plaintiff

ANDTHE REGISTRAR OF COMPANIES Defendant

Hearing:                   28 May 2013

Counsel:                  DG Hayes for plaintiff

No appearance for defendant

Judgment:                28 May 2013

(ORAL) JUDGMENT OF ASSOCIATE JUDGE FAIRE [on application to restore company to register of companies]

HAYES v THE REGISTRAR OF COMPANIES [2013] NZHC 1236 [28 May 2013]

[1]      Application is made by the former liquidator of Smartcare Services Group Ltd to restore that company to the register of companies.  The application is made in reliance on s 329 of the Companies Act 1993.   Particular reliance is placed on s 329(1)(a)(iii) and (2)(a)(v).

[2]      Section 329(1)(a)(iii) provides:

329     Court may restore company to New Zealand register

(1)       The Court may, on the application of a person referred to in subsection  (2) of this section, order that a company that has been removed from the New Zealand register be restored to the register if it is satisfied that,—

(a)       At the time the company was removed from the register,—

…

(iii)      The company was in receivership, or liquidation, or both;

[3]      Section 329(2)(a)(v) provides:

(2)       The following persons may make an application under subsection  (1) of this section:

(a)       Any person who, at the time the company was removed from the

New Zealand register,—

…

(v)       Was the liquidator, or a receiver of the property of, the company:

[4]      The application is made so that the former liquidator can take appropriate action arising from a notification from the Commissioner of Inland Revenue concerning a default and a claim for a preferential claim and to enable the former liquidator to consider taking remedial action to recover funds transferred either by the shareholders or directors out of the company’s assets.

[5]      As a result of the filing of this proceeding and directions for service that I have given, the following have signalled their respective positions in relation to this proceeding.   The Secretary for Treasury and a creditor, ACC, have recorded their non-opposition to the relief sought in the amended statement of claim.  The major

creditor, the Commissioner of Inland Revenue, advises that the Commissioner will abide the decision of the court, as does the Registrar of Companies.

[6]      The shareholders and directors have been served with the proceeding, but have taken no steps.

[7]      I am satisfied that the relief sought in the amended statement of claim is appropriate and will enable the former liquidator to advance a claim in the areas mentioned in this judgment and more particularly set out in paragraphs 12 and 13 of the amended statement of claim.

[8]      Accordingly, I order:

a)        Smartcare Services Group Ltd is restored to the register of companies;

b)        The plaintiff is confirmed as liquidator;

c)        The document recorded  as the final report  of the liquidator dated

23 August 2012 shall be removed from the documents contained in the register of companies.

JA Faire

Associate Judge

c