Hays Specialist Recruitment (Australia) Pty Limited v ADM Canterbury Limited HC Christchurch CIV 2010-409-002912
[2011] NZHC 1401
•4 October 2011
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CIV 2010-409-002912
BETWEEN HAYS SPECIALIST RECRUITMENT (AUSTRALIA) PTY LIMITED Plaintiff
AND ADM CANTERBURY LIMITED Defendant
Hearing: 4 October 2011
(Heard at Christchurch)
Appearances: A N Riches for Applicant/Defendant
K D Morrison for Liquidators
No appearance for Respondent/Plaintiff
Judgment: 4 October 2011
JUDGMENT OF ASSOCIATE JUDGE OSBORNE terminating liquidation
[1] The defendant (ADM) was put into liquidation on 17 May 2011. It had failed to meet a debt of some $35,000.00 owed to the plaintiff.
[2] David John Kennedy, a director and shareholder of ADM, applies for an
order terminating ADM’s liquidation.
Jurisdiction
[3] ADM invokes the Court’s power under s 250(1) Companies Act 1993 which provides –
250 Court may terminate liquidation
(1) The Court may, at any time after the appointment of a liquidator of a company, if it is satisfied that it is just and equitable to do so, make an order terminating the liquidation of the company.
HAYS SPECIALIST RECRUITMENT (AUSTRALIA) PTY LIMITED V ADM CANTERBURY LIMITED HC CHCH CIV 2010-409-002912 4 October 2011
[4] By reason of the provisions of s250(2)(c) Mr Kennedy is a person with the status to make such an application.
[5] Without direction, the liquidators have furnished a report to the Court of the nature provided for in s250(3) of the Act.
[6] In the usual case, the Court will only exercise its discretion to order the termination of a liquidation if:
[a] All the creditors have been paid in full or satisfactory provision has been made for them to be paid or they have consented; and
[b] The liquidator’s costs have been paid or secured; and
[c] The shareholders have given their consent or would be in no worse position than if the liquidation had proceeded to its conclusion.
The evidence
[7] Mr Kennedy deposes that –
ADM is a painting and decorating company.
At a time when Mr Kennedy was experiencing personal difficulties, ADM ran into difficulties as a result of the recession.
ADM was still trading at the date of liquidation and the liquidators
continued to trade ADM afterwards.
ADM has experienced good work flows since the Canterbury earthquakes and its financial performance in the current financial year
has seen a significant financial surplus produced.
ADM has obtained finance facilities from its banker.
ADM has put the liquidators in funds of $80,075.13 which is sufficient to meet all the outstanding creditors ($70,075.13) as well as to cover the liquidators’ fees and disbursements ($10,000 including
GST).
[8] By their report, the liquidators have confirmed the key points in Mr Kennedy’s evidence. They refer also to having had close contact with the various parties regarding the payment of funds. They confirm that current creditors have been paid in full. They consent to an order terminating the liquidation.
[9] The respondent/plaintiff has not entered an appearance in relation to this application.
Application of the principles
[10] I am satisfied that the creditors will all be paid in full from the funds which have been provided to the liquidators.
[11] I am satisfied that the liquidator’s costs will be similarly paid.
[12] Finally, Mr Kennedy is the sole shareholder of ADM and this is his application.
[13] In these circumstances, I am satisfied that it is just and equitable that the liquidation of ADM be terminated.
Order
[14] I order that the liquidation of ADM Canterbury Limited is terminated with immediate effect.
Associate Judge Osborne
NOTICE REQUIREMENT
The solicitors on the record for the parties are promptly to provide a copy of this
Minute to their clients (r 5.43).
Solicitors:
Saunders & Co, PO Box 18, Christchurch – [email protected]
Parry Field Lawyers, PO Box 1725, Christchurch 8140 - [email protected]
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