Ladstone Holdings Limited v Registrar of Companies

[2019] NZHC 1500

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-0969

[2019] NZHC 1500

UNDER

the Companies Act 1993

BETWEEN

LADSTONE HOLDINGS LIMITED

Applicant

AND

REGISTRAR OF COMPANIES

First Respondent

THE SECRETARY TO THE TREASURY
Second Respondent

KDB PROPERTY LIMITED (REMOVED)

Third Respondent

Hearing:

28 June 2019

Appearances:

A G Holden for the Applicant

No appearances for the Respondents

Judgment:

28 June 2019

ORAL JUDGMENT OF ASSOCIATE JUDGE SMITH

This judgment was delivered by me on 28 June 2019 at 11.45am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors / Counsel: Wilson Harle, Auckland J Miles QC, Auckland

LADSTONE HOLDINGS LTD v REGISTRAR OF COMPANIES [2019] NZHC 1500 [28 June 2019]

[1]        The third respondent (KDB) was removed from the Register of Companies on 30 November 2017.

[2]        The applicant applies under s 329 of the Companies Act 1993 (the Act) for an order restoring KDB to the Companies Register.

[3]        By order made on 13 June 2019, Associate Judge Andrew granted leave to the applicant to make the application by way of originating application.

[4]        The application has been properly served on the director and shareholders of KDB, and also on the Secretary to the Treasury and the Registrar of Companies. The Registrar has filed a consent to the application, and the Secretary to the Treasury has advised that the Crown has no objection and will abide the decision of the Court. The solicitor for the third defendant's former director and shareholders has filed a memorandum advising that the third defendant consents to the application.

[5]        The applicant applies for the order restoring KDB to the Register, either as a creditor of KDB at the time of its removal from the Register or as a party having an undischarged claim against KDB at that time.1

[6]        I am satisfied that the applicant had an undischarged claim against KDB when it was removed from the Register, and is thus entitled to apply under s 329(2)(a)(iv) of the Act.2 On the same basis, the Court has jurisdiction to make the order sought under s 329(1)(a)(iv) of the Act.

[7]        In this case, the applicant alleges that its former director acted in breach of confidence with regard to certain information held by the applicant, and that KDB wrongfully and with knowledge of the alleged breach of confidence made a profit by receipt and use of the confidential information. A principal issue in the proposed litigation will presumably be whether KDB acted unconscionably in relation to the acquisition of the information or in the way it was employed.3

1      Companies Act 1993, s 329(2)(a)(ii) or (iv).

2      An undischarged claimant is a person with a contestable claim against the company who has not started proceedings against the company — Wellington City Council v Registrar of Companies [2015] NZHC 572; [2015] 3 NZLR 411 at [85].

3      Hunt v A [2008] 1 NZLR 368 (CA).

[8]        Mr Pendergrast, a director of the applicant, has provided an affidavit setting out the basis of the claim, and I am satisfied that the claim is a genuine claim and one that cannot be dismissed as being clearly untenable (although parts of Mr Pendergrast's evidence will apparently be challenged by KDB). I am accordingly satisfied that the case is a proper one for the making of the orders sought.

[9]        I make an order under s 329 of the Act restoring KDB Property Ltd to the Register of Companies.

Associate Judge Smith