Maple Land International Ltd v Ping - [2022] NZHC 248

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CIV-2021-454-000065

[2022] NZHC 248

UNDER the Companies Act 1993

IN THE MATTER

of an application to set aside a statutory demand issued under s 290 of the Act

BETWEEN

MAPLE LAND INTERNATIONAL LIMITED

Applicant

AND

ZHANG PING

Respondent

Hearing: 3 February 2022 (by AVL)

Appearances:

S E Russell and A South for Applicant S J Parsons for Respondent

Judgment:

22 February 2022

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 22 February 2022 pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

MAPLE LAND INTERNATIONAL LTD v PING [2022] NZHC 248 [22 February 2022]

[1] Maple Land International Ltd (Maple) applies under s 290(4) of the Companies Act 1993 for an order setting aside a statutory demand issued by the respondent Zhang Ping (Ms Ping) dated 30 September 2021. The statutory demand requires payment of the sum of $75,000 said to be the amount owing by Maple to Ms Ping under Deeds of Nomination and Acknowledgement of Debt dated 14 June 2021 and a Deed of Settlement dated 12 August 2021.

[2]Maple’s amended application is made on the grounds that:

(a)the statutory demand was not served in accordance with the requirements of service under the Companies Act 1993 and is a nullity; and

(b)there is a genuine and substantial dispute as to whether Maple is indebted to Ms Ping for the sum demanded.

[3]For her part, Ms Ping asserts:

(a)the statutory demand was validly served (although there has been a post-hearing change of position as to how and when service is said to have been effected);

(b)there is no genuine or substantial dispute as to Maple’s indebtedness to Ms Ping in the sum of $75,000; and

(c)the application to set aside the statutory demand is a nullity having not been filed and served within 10 working days of service of the statutory demand as required by s 290(2) of the Companies Act.

[4] As will be apparent, and counsel identified, the issues arising (and the logical order to deal with them) are:

(a)whether the statutory demand was validly served and, if so, when;

(b)whether the application to set aside the statutory demand was filed and served within 10 working days of service of the statutory demand as required by s 290(2) of the Companies Act; and

(c)whether a genuine and substantial dispute exists as to the alleged debt which is the subject of the statutory demand.

[5] Counsel also recognise that if the statutory demand was not validly served, that will determine the matter and the other two issues fall away.

Factual background

[6] On 19 November 2018, Ms Ping entered into an agreement with Thatilldo Ltd (Thatilldo) to purchase 15 North Street, Palmerston North (the property) for $538,000. The agreement was conditional upon the parties entering into a building contract for the construction of a new house on the property. Ms Ping paid…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NZHC 248
Decision Date: 22 February 2022

CaseChat Overview and Summary

Maple Land International Ltd applied to set aside a statutory demand issued by Zhang Ping. Ms Ping issued the statutory demand pursuant to s 290 of the Companies Act 1993, requiring Maple to pay the sum of $75,000. The basis of the demand was a debt owing by Maple to Ms Ping under Deeds of Nomination and Acknowledgement of Debt and a Deed of Settlement. Maple's application was made on the grounds that the statutory demand was not served in accordance with the requirements of service under the Companies Act 1993 and is a nullity, and that there is a genuine and substantial dispute as to whether Maple is indebted to Ms Ping for the sum demanded. Ms Ping asserted the statutory demand was validly served and that there is no genuine or substantial dispute as to Maple’s indebtedness to her in the sum of $75,000. The court found that the statutory demand was not validly served on Maple and was effectively a nullity. The court found the statutory demand was not validly served because it was delivered to Maple’s solicitors, not to Maple itself. The court further found that Ms Ping’s affidavits were contentious, lacked objectivity, and contained hearsay, speculation, submission, and scandalous allegations. The court dismissed Maple’s application to set aside the statutory demand and ordered that Ms Ping pay Maple costs.

Orders