Kiwi Mortgage Market (Queenstown) Limited v Financial Services South Limited HC Invercargill CIV-2011-425-000240

[2011] NZHC 545

IN THE HIGH COURT OF NEW ZEALAND REGISTRY

CIV-2011-425-000240

UNDER  The Companies Act 1993

IN THE MATTER OF     an appliation under Section 290

BETWEEN  KIWI MORTGAGE MARKET (QUEENSTOWN) LIMITED Applicant

ANDFINANCIAL SERVICES SOUTH LIMITED

Respondent

Hearing:         9 June 2011

Appearances: R A Lindsay on instructions from J B Lovely for Applicant

R T Chapman for Respondent

Judgment:      9 June 2011

ORAL JUDGMENT OF VENNING J

Solicitors:           Downie Stewart, PO Box 1345, Dunedin 9016 (J B Lovely) AWS Legal, PO Box 1207, Invercargill 9840 (R A Lindsay) Cruickshank Pryde, PO Box 857, Invercargill 9840 (R T Chapman)

KIWI MORTGAGE MARKET (QUEENSTOWN) LIMITED V FINANCIAL SERVICES SOUTH LIMITED HC CIV-2011-425-000240 9 June 2011

[1]      This is an application to set aside a statutory demand.

[2]      When the matter was first called I raised an issue with counsel.  It appears from the Court documentation that the application was filed on 18 May.   Counsel confirms that that is the case.  The statutory demand was served on 13 April.  The application to set aside is therefore out of time.  Section 290 of the Companies Act

1993 applies, in particular s 290(2).  The section makes it clear that the application must both be made within 10 working days and served within 10 working days.  An application is not made until and unless it is filed with the Court.

[3]      The application was not made within 10 working days.  Ms Lindsay advises she was instructed to submit that the application was made when served on the creditor, however, the statutory wording is the answer to that submission.  Section

290(2)(a) and (b) requires the application both be made and served within the 10 working days.  They are separate and distinct requirements.  If either of them are not complied with then the application is not made within time and is defective.  Section

290(3) confirms that it is not possible to grant an extension of time for making or serving an application to serve the statutory demand.  In this case as the application to set aside the statutory demand was not made within time it must be dismissed.

[4]      Ms Lindsay also sought an order extending the time for compliance with the statutory demand in accordance with s 290(3).  However, as I read that subsection an extension can only be granted at the hearing of an application to set  aside the statutory demand.  That pre-supposes that there is an extant application before the Court.  In the present case while there is documentation before the Court there is no basis for the application as it is out of time and I do not consider there is jurisdiction to grant an extension.  In any event I am not minded in the circumstances to grant such an extension given that the statutory demand in this case was served as long ago as 13 April.

[5]      The respondent has been put to costs.  I dismiss the application for want of jurisdiction and grant costs to the respondent on a 2B basis on steps taken to date.

Venning J