Jones v Tyrell

[2021] NZHC 3084

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-001729

[2021] NZHC 3084

BETWEEN

KIERAN JONES and STEVEN KHOV as

liquidators of AFFIRMATIVE LIMITED (IN LIQUIDATION)
First Plaintiffs

AFFIRMATIVE LIMITED (IN LIQUIDATION)
Second Plaintiff

AND

DANIEL TYRELL

Defendant

Hearing:

16 November 2021

Appearances:

M W Swan for Plaintiffs

No appearance for Defendant

Judgment:

16 November 2021

ORAL JUDGMENT OF VENNING J

Solicitors:           Hucker & Associates, Auckland

JONES and KHOV v TYRELL [2021] NZHC 3084 [16 November 2021]

[1]    Mr Jones and Mr Khov are the liquidators of Affirmative Limited. Mr Tyrell, the defendant, was a director of that company and shareholder of the company. The plaintiffs’ investigation during the course of the liquidation has led them to conclude that the defendant owes money through his current account to the company. The defendant has failed to respond to the liquidators’ request for repayment of that money. The defendant has also failed to respond to the liquidators’ request for him to deliver up financial statements and other records relating to the company and also computer equipment belonging to the company.

[2]    Since these proceedings have been served there has been no response by the defendant.

[3]    Having regard to the matters set out in the affidavit supporting the application for summary judgment I am satisfied that there is no reasonably arguable defence apparent to the plaintiffs’ claim. As liquidators the plaintiffs are entitled to the property of the company and to take the action they have.

[4]There will be judgment for the plaintiffs against the defendant in the sum of

$408,490.72, interest in accordance with the Act of $1,339.90 and costs of $9,251.75, together with disbursements of $1,791.00.

[5]    In addition there will be an order that the defendant deliver up to the first plaintiff the items of company property as set out in the schedule attached to this judgment in accordance with the second cause of action.

Venning J

SCHEDULE B DRAFT ORDER OF THE COURT

After reading the statement of claim dated 26 August 2021, the With Notice Interlocutory Application for Summary Judgment dated 30 August 2021 and the Affidavit of Kieran Michael Jones sworn  30  August  2021,  and  after  hearing  from M W Swan, Solicitor on behalf of the First and Second Plaintiffs this Court orders:

1.The Defendant, Daniel Tyrell, within 10 working days of the date of service of this order, deliver up to an address nominated by the First Plaintiffs any property and documentation of the Second Plaintiff including but not limited to:

a.Any financial statements;

b.A current depreciation schedule;

c.A current aged payables ledger;

d.A current aged receivables ledger;

e.A list of all staff and their contact details;

f.Any correspondence from the Inland Revenue;

g.A copy of the lease agreement and contact details of the landlord;

h.All computer equipment of the company;

i.The five sets of electronic keys to the companies trading premises.

Date:

Signature:       

(Deputy Registrar