Mules v Registrar of Companies

[2016] NZHC 1933

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-2733 [2016] NZHC 1933

UNDER	ss 284 and 329 of the Companies Act 1993
IN THE MATTER	of an application by PHILIPPA JANE MULES for orders that VILLAGE RESTAURANTS LIMITED (IN LIQUIDATION), TUTANEKAI ENTERPRISES LIMITED (IN LIQUIDATION) AND FAIRY SPRINGS ENTERPRISES LIMITED (IN LIQUIDATION) be restored to the companies Register
BETWEEN	PHILIPPA JANE MULES Applicant
AND	REGISTRAR OF COMPANIES Respondent

Hearing:	11 August 2016
Appearances:	C A Murphy for Applicant
Judgment:	18 August 2016

JUDGMENT OF PETERS J

This judgment was delivered by Justice M Peters on 18 August 2016 at 4.30 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date: ...................................

Solicitors:           Gregory Simon Law, Auckland

Counsel:            C A Murphy, Auckland

MULES v REGISTRAR OF COMPANIES [2016] NZHC 1933 [18 August 2016]

[1]      The Applicant, Ms Mules, seeks review of a judgment of Associate Judge Bell dated 16 May 2016 in which the Judge declined Ms Mules’ application to restore three companies (“companies”) to the register of companies (“application”).1

The companies concerned were struck off the register in 2008.

[2]      The application was not opposed, but Judge Bell concluded that no purpose would be served by restoration of the companies, and he dismissed the application accordingly.

[3]      Ms Mules’ application for review of the Judge’s decision came before me as

Duty Judge on 11 August 2016.

[4]      At the start of the hearing, I asked counsel whether Ms Mules was entitled to apply for review, ie whether the Judge’s decision was made “in chambers”.2   If not, Ms Mules would be required to pursue an appeal to the Court of Appeal.3     This appears from s 26P(1) and (2) Judicature Act 1908 (“Act”):

26P     Review of, or appeals against, decisions of Associate Judges

(1)       Any  party  to  any  proceedings  who  is  affected  by  any  order  or decision made by an Associate Judge in chambers may apply to the court to review that order or decision and, where a party so applies in accordance with the High Court Rules, the court—

(a)      must review the order or decision in accordance with the

High Court Rules; and

(b)      may make such order as may be just.

(2)       Any party to any proceedings may appeal to the Court of Appeal against any order or decision of an Associate Judge in those proceedings (other than an order or decision made in chambers).

[5]      Counsel’s initial response to my enquiry was that the application for review

may have been made in error.  However, counsel subsequently advised that, as the

Judge’s decision was made “on the papers” and in a setting from which the public

1      Mules v Registrar of Companies [2016] NZHC 986; and Companies Act 1993, s 329.

2      Judicature Act 1908, s 26P(1).

3      Section 26P(2).

was excluded, the decision might in fact have been made “in chambers” for the

purposes of s 26P(1) of the Act.4

Discussion

[6]      I do not have jurisdiction to determine this application for review, and I

dismiss it accordingly.

[7]      First,  the  application  was  made  pursuant  to  s  329  Companies Act  1993 (“s 329”). An Associate Judge’s jurisdiction to determine such an application derives from s 26I(2)(e) of the Act, which provides:

26I      Associate Judge may exercise certain powers of the court

(2)       An Associate Judge shall have and may exercise all the jurisdiction and powers which are vested in the court or a Judge by the following enactments:

...

(e)      sections 123, 154, 165 to 168, 173, 179, 232 to 234, 236 to

238, Part 15A, Part 16, and section 329 of the Companies

Act 1993:

[8]      Accordingly, on the face of it, the Judge determined the application in the exercise of jurisdiction and powers vested in the Court.

[9]      Secondly, it is the matter in issue, rather than the setting which determines whether a decision has been made in chambers or in Court for the purposes of s 26P.5

This  appears  from  Talyanich  v Index Developments  Ltd,  in  which  the Court  of

Appeal said:6

We think it is clear that where a Master is exercising the jurisdiction of the Court under s 26I of the Judicature Act 1908, the Master must do so in Court and not in Chambers, and an appeal from the decision lies to this Court under s 26P(2).  Where a Master is exercising the powers of a Judge sitting in Chambers pursuant to s 26J of the Act, the matter should be dealt with in Chambers and the decision will then be subject to review under s 26P(1).  If such a matter is in fact dealt with by a Master sitting robed in open Court,

4      Memorandum of Counsel dated 11 August 2016.

5      Faloon v Commissioner of Inland Revenue [2013] NZHC 1736, (2013) 21 PRNZ 454; Nga Uri

Whakatipurunga O Ngarae (Inc) v Marac Finance Ltd HC Auckland CIV-2008-404-6180, 9

December 2009.

6      Talyanich v Index Developments Ltd [1992] 3 NZLR 28 (CA) at 36–37.

the Master is still exercising a personal jurisdiction conferred on Masters by s 26J, being a jurisdiction of a Judge sitting in Chambers, and is not exercising a jurisdiction or power of the Court under s 26I. The order is, therefore, an order made in Chambers for the purposes of s 26P regardless of matters of form such as the use of a courtroom, the wearing of robes, or the allowing of access to the public.   If instead of dealing with the matter in Chambers the Master directs pursuant to R 234 that it be dealt with in Court, the effect of the direction will be that the matter is to be dealt with in Court by a Judge. The Master’s judgment in the present case must, therefore, be regarded as having been given in Chambers.

[10]     For these reasons, I consider that the Applicant has no right of review and I

dismiss the application accordingly.

..................................................................

Peters J