Marmande Property Investment Limited v Simon Cooke New Zealand Limited

[2018] NZHC 2458

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2017-404-002879

[2018] NZHC 2458

UNDER

The Companies Act 1993

BETWEEN

MARMANDE PROPERTY INVESTMENT LIMITED

Applicant

AND

SIMON COOKE NEW ZEALAND LIMITED

Respondent

On the papers
Counsel:	J San Diego for the Applicant
Judgment:	25 September 2018

JUDGMENT OF ASSOCIATE JUDGE P J ANDREW

This judgment was delivered by me on 25 September 2018 at 3.30 p.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date.......................................

Solicitors:
Doug Cowan, Auckland

MARMANDE PROPERTY INVESTMENT LIMITED v SIMON COOKE NEW ZEALAND LIMITED [2018]

NZHC 2458 [25 September 2018]

Introduction

[1]                  The applicant, Marmande Property Investment Limited, has made application pursuant to s 250 of the Companies Act 1993 terminating the liquidation of the respondent company, Simon Cooke New Zealand Ltd.

[2]                  The applicant contends that the liquidation order was obtained in error in that there was a mistake in the identity of the company that was indebted to the applicant.

[3]                  The applicant says that it would be just and equitable to terminate the liquidation given that there was no proper basis for making the order in the first instance.

[4]                  The matter  was  called  before  me in  the miscellaneous companies  list  on  7 September 2018. I made directions that the shareholders should be served with a copy of the proceeding.

[5]                  The application has now been served on the shareholders and the liquidator. The liquidator has no objection to the order sought and the shareholders have taken no steps in the proceeding.

History of the proceedings

[6]The applicant has filed the following documents in support of the application:

(a)An interlocutory application dated 31 August 2018;

(b)Memorandum     of     counsel     to     terminate     liquidation     dated 31 August 2018;

(c)Affidavit of Lucy Gould sworn 31 August 2018;

(d)Memorandum of counsel for the applicant dated 18 September 2018; and

(e)Affidavit of Claudia Harnett dated 17 September 2018.

[7]                  On 14 September 2017 the applicant obtained judgment by default against the respondent in the sum of $856,929.27, together with costs. The respondent subsequently failed to comply with a statutory demand and on 17 December 2017 the applicant filed a statement of claim in this Court to liquidate the respondent.

[8]                  The respondent was not represented at any stage of the liquidation proceeding (whether by counsel or otherwise). On 2 March 2018 the respondent was placed in liquidation. The order was unopposed.

[9]                  On 13 April 2018 the solicitors for the applicant were alerted by the Court to a possible mistake in the identity of the company, the subject of the order for liquidation.

[10]              The solicitors for the applicant have made inquiries and have satisfied themselves that there was a mistake in the identity of the company and that the respondent should not have been the company pursued by the applicant, for the debt of $856,929.27. The solicitors have advised that there was no written contract between Marmande and the respondent, making the correct identity of the parties to the contract an unknown factor in late 2017. The solicitors now accept that it has become apparent that the respondent should not have been the company pursued by the applicant.

Decision

[11]              I am satisfied that the grounds have been made out for an order terminating the liquidation of the respondent company. It would be just and equitable to do so.

[12]              I accordingly order pursuant to s 250 of the Companies Act 1993 that the liquidation of the respondent, Simon Cooke New Zealand ltd Limited is terminated.

[13]There is no order as to costs.

Associate Judge P J Andrew