Kirk v Goscut Concrete Cutter Limited

[2017] NZHC 1328

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2017-409-000163 [2017] NZHC 1328

IN THE MATTER

of the Companies Act 1993

BETWEEN

JESSICA KIRK Plaintiff/Applicant

AND

GOSCUT CONCRETE CUTTER LIMITED

Defendant/ Respondent

Hearing:	15 June 2017
Appearances:	P K Tucker for Plaintiff/Applicant
Judgment:	16 June 2017

JUDGMENT OF ASSOCIATE JUDGE MATTHEWS

[1]      Ms Kirk applies for an order placing Goscut Concrete Cutter Limited into liquidation.

[2]      The  application  is  based  on  the  unpaid  portion  of  a  sum  which  the Employment  Court  directed  be  paid  to  her  by  this  company.    The  company is presumed to be unable to pay its debts because it has not complied with a demand issued under s 289 of the Companies Act 1993.  It has not filed any documents in opposition to the order.  The Court has a memorandum from counsel confirming that the balance of the debt ($5,000 and costs) remains unpaid.  Ms Kirk is entitled to an order placing Goscut Concrete Cutter Limited into liquidation.

[3]      Additionally,  she  applies  for  an  order  joining  to  this  proceeding  Goscut

Concrete  Cutter  (2017)  Limited,  with  a  view  to  an  order  being  sought  under s 271(1)(a) that Goscut Concrete Cutter (2017) Limited pay to the liquidator of

KIRK v GOSCUT CONCRETE CUTTER LTD [2017] NZHC 1328 [16 June 2017]

Goscut Concrete Cutter  Limited all of the claims made to the liquidator in the liquidation.

[4]      The interlocutory application for joinder of Goscut Concrete Cutter (2017) Limited is not opposed.   The application was served on the company.   I make an order joining Goscut Concrete Cutter (2017) Limited as a defendant.

[5]      Neither the application for joinder, nor the statement of claim, both of which were served on both companies on 3 April 2017 specifically asks for an order under s 271(1)(a).   The affidavit of Ms Kirk in support of the application refers to the interrelationship of the two companies but does not specifically mention that an order is sought under this section.  There is no proof, therefore, that Goscut Concrete Cutter (2017) Limited is aware of the request now made by Ms Kirk for an order under s 271.  In this circumstance the Court is not prepared to make the order sought.

[6]      It will be necessary for Ms Kirk to file an application for an order under s 271(1)(a) and serve that application on the 2017 company.   The company has already been served with Ms Kirk’s affidavit in support of the application for joinder. If Ms Kirk relies on that affidavit in support of the order under s 271(1)(a) the application must refer to that affidavit so that point is clear to the company.  Ms Kirk may also file a further affidavit and serve it on the company along with the application if she wishes to adduce further evidence on this application specifically.

[7]      Any such application should be filed within 10 working days and given its first call in the Insolvency List at 10.00 am on 29 June 2017.

Orders

[8]      I make an order placing Goscut Concrete Cutter Limited into liquidation. The Official Assignee of the Southern Region is appointed as the liquidator.  Goscut Concrete Cutter Limited will pay to Ms Kirk costs on proceedings in this court, to date.  These are the costs set out in the memorandum filed by counsel for the hearing today, on issuing the statutory demand, filing the statement of claim and related documents, appearing at the hearing, filing the interlocutory application for joinder and preparing written submissions.

[9]      Costs are also sought in relation to attendances in the Employment Court.  It was necessary for Ms Kirk to approach that Court to have the non-publication orders made  by  that  Court  lifted  so  that  the  application  before  this  Court  could  be advertised in accordance with the requirements of the High Court Rules.  This Court cannot, however, award costs of the application to the Employment Court.   Any application for costs in that Court will need to be made to that Court.  If an order is made, the order may be proved as a debt in the liquidation, just as the order for costs now made in this Court may be.

[10]     The company will also pay disbursements in a sum of $314.49.

[11]     The proceeding is adjourned to the List on 29 June 2017 for the reasons given.

J G Matthews

Associate Judge

Solicitors:

Joynt Andrews Solicitors, Christchurch