Ministry of Health v Registrar of Companies

[2022] NZHC 675

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2021-419-000231

[2022] NZHC 675

UNDER

Companies Act 1993

IN THE MATTER OF

An application to restore NZ WATER PURIFIER LIMITED to the Companies Register

BETWEEN

MINISTRY OF HEALTH

Applicant

AND

REGISTRAR OF COMPANIES

First Respondent

THE TREASURY

Second Respondent

Hearing:

On the papers

Counsel:

J D Williams for Applicant

First and Second Respondent abiding the decision of the Court

Judgment:

4 April 2022

JUDGMENT OF ASSOCIATE JUDGE P J ANDREW

This judgment was delivered by Associate Judge Andrew on 4 April 2022 at 2.30 pm

pursuant to r 11.5 of the High Court Rules Registrar / Deputy Registrar

Date ……………………………….

MINISTRY OF HEALTH v REGISTRAR OF COMPANIES [2022] NZHC 675 [4 April 2022]

Introduction

[1]                   The applicant, the Ministry of Health, seeks an order under s 329 of the Companies Act 1993 restoring NZ Water Purifier Ltd to the Companies Register.

[2]                   The application has been served upon the two respondents, neither of whom oppose the application. Mr Michael Main, the former director of the company, has filed a notice of objection.

[3]The application is being determined on the papers.

Decision

[4]                   The principal basis for the restoration order sought is that the company was removed from the Register at a time when legal proceedings were on foot against it. Those criminal proceedings, filed against the company and shareholder, Mr Roger Blake, were brought under the Medicines Act 1991 and are currently before the Thames District Court.

[5]                   Section 329(1)(a)(ii) of the Companies Act 1993 expressly provides that the Court may on the application of a person who at the time a company was removed was a party to legal proceedings against the company, order that the company be restored if it is satisfied that those proceedings were ongoing at the time the company was removed.

[6]                   In his notice of objection, Mr Main contends that the applicant failed to object to the proposed removal of the company. He relies on the procedure set out in Part 17 of the Companies Act 1993. This appears to be the principal ground of objection.

[7]                   However, as the applicant submits, the Court has an express power under s 329 to ensure that relief may be obtained where circumstances existed at the time a company was removed from the Register that were not then known to the Registrar.

[8]                   The following comments from the Court of Appeal in Commissioner of Inland Revenue v Commercial Management1 are relevant:

1      Commissioner of Inland Revenue v Commercial Management [2019] NZCA 479 at [29].

The provisions concerning removal of a company are designed to ensure that a company is only removed when there is no good reason for it to continue in existence. The controllers of the company and other interested persons are given the opportunity to object to removal for a range of reasons. But there can be cases where a company is removed from the Register as a result of an error or oversight, or where the circumstances change and it becomes apparent with the benefit of hindsight that there were good reasons for the company to continue in existence. In such cases, a company can be restored to the Register.

[9]                   It is noticeable that Mr Main, in his notice of objection, does not dispute that the company was a party to legal proceedings at the time it was removed. To the contrary, it is clear from the evidence before the Court that at the time the process to remove the company from registration was initiated, both the company and its sole shareholder, Mr Roger Blake, were aware of the criminal proceedings against them and that those proceedings remained outstanding.

[10]               None of the other grounds of objection referred to by Mr Main in his documentation of 30 November 2021 provide any basis for my refusing the order sought. In particular, the contention by Mr Main that he has “full diplomatic immunity” based on customary law/lore is not a valid basis for refusing the order sought.

[11]               In all the circumstances, I conclude that the applicant has established a proper basis under s 329 for an order restoring the company to the Register. I accordingly grant the application under s 329 and make an order restoring the company to the Register.

Result

[12]               I grant the application to restore the company to the Register pursuant to s 329 of the Companies Act 1993.

Associate Judge P J Andrew