Land Rover Parts Limited v Forward Specialties Limited HC Auckland CIV 2008-404-003242

[2008] NZHC 2400

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2008-404-003242

BETWEEN  LAND ROVER PARTS LIMITED Plaintiff

ANDFORWARD SPECIALTIES LIMITED Defendant

Hearing:         4 July 2008

Appearances: J E Dorbu for Plaintiff

P G Revell for Defendant

Judgment:      4 July 2008 at 2 pm

ORAL JUDGMENT OF ASSOCIATE JUDGE ROBINSON

This judgment was delivered by me on 24 July 2008 at 2 pm, Pursuant to Rule 540(4) of the High Court Rules

Registrar/Deputy Registrar

Date……

Solicitors:           S T Fonua, Solicitor, PO Box 91-787, Auckland

Corban Revell. PO Box 21-180, Waitakere City

Counsel:            J E Dorbu, Barrister, PO Box 105 345, Auckland

LAND ROVER PARTS LIMITED V FORWARD SPECIALTIES LIMITED HC AK CIV 2008-404-003242  4

July 2008

[1]      The plaintiff applies to set aside a statutory demand served on it by the defendant claiming $25,248.48 for rent and outgoings payable under a lease. The application to set aside the statutory demand is opposed.

[2]      As a preliminary point, counsel for the defendant submits that the application to set aside the statutory demand is out of time.

[3]      According to the defendant, the statutory demand was duly served on the plaintiff at 4.45 pm on 15 May 2008. The plaintiff has ten working days from that date to file and serve an application to set aside the statutory demand. Consequently, an application filed on 30 May 2008 to set aside the statutory demand was out of time.

[4]      Counsel  for  the  plaintiff  contends  that  the  application  to  set  aside  the statutory demand has been filed within time because: -

a)       According to evidence of the defendant the statutory demand was not served until after 5 pm on 15 May 2008. Consequently if no account is taken of 16 May 2008 when calculating the ten working days, an application filed and served on 30 May 2008 would have been in time.

b)In support of his submission that a statutory demand served after 5 pm results in the day of service not being included in the calculation of the time limit, counsel for the plaintiff relied on the High Court rules.

[5]      There is no cogent evidence to contradict the evidence of the process server to the effect that the statutory demand was served on the plaintiff at 4.45 pm on 15

May 2008. The plaintiff’s evidence to the effect that the statutory demand was served after 5 pm is based on the evidence of Mr Alexander the director of the plaintiff. He deposes that the statutory demand was brought to his attention after 5 pm when he returned from work. He says based on enquiries he made that he believes the document was served outside office hours. Clearly that evidence is hearsay. Consequently the only direct evidence is the evidence of the process server.

It must follow therefore that the application to set aside the statutory demand has been filed out of time.

[6]      However, even if the statutory demand was not served until after 5 pm on 15

May 2008, I am satisfied that an application to set such a demand aside filed on 30

May 2008 must be out of time. S 290 provides for the filing and serving of an application to set aside a statutory demand within ten working days of the date of service. Pursuant to s 35(1) Interpretation Act 1999 “a period of time described as beginning at, on, or within a specified day, at, or event includes that day or the day of  the  act  or  event.”  Consequently  if  the  16  May  2008  is  included  then  the application filed on 30 May 2008 to set aside the statutory demand must be out of time.

[7]      There is clear authority that there is no jurisdiction for this court to extend the time for filing an application to set aside a statutory demand. That is giving effect to the express provision contained in s 290(3) Companies Act 1993. However, s 290(3) does empower the court to extend the time for complying with a statutory demand. In the circumstances, I am prepared to extend the time for complying with the statutory demand for a further ten days from 7 July 2008.

[8]      In summary therefore: -

a)        The application to set aside the statutory demand is dismissed as it is out of time.

b)The time for complying with the statutory demand is extended by ten working days from 7 July 2008.

c)        The question of costs will be reserved.

Associate Judge Robinson