New Zealand Office Supplies Limited v Pickapark.co.nz Limited

[2019] NZHC 1009

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2018-412-98

[2019] NZHC 1009

BETWEEN

NEW ZEALAND OFFICE SUPPLIES LIMITED
Plaintiff

AND

PICKAPARK.CO.NZ LIMITED

Defendant

Hearing

9 May 2019

Appearances:

S R Wells for Plaintiff

No appearance for Defendant

Judgment:

9 May 2019

ORAL JUDGMENT OF ASSOCIATE JUDGE LESTER

[1]        The judgment creditor in this matter seeks an order placing the defendant/judgment debtor in liquidation.

[2]        The matter was commenced in early November 2018 relying on a statutory demand issued in September 2018. The proceedings were served at the end of November 2018.

[3]        The proceedings came before the High Court earlier this year and Minutes were issued by the Court recording the defendant’s intention to pay the debt. Last time this matter was before the Court on 20 April 2019 I adjourned the application on the strength of an email sent on behalf of the defendant from its director which was accompanied by what appeared to be a screen shot of an internet banking payment set

NEW ZEALAND OFFICE SUPPLIES LIMITED v PICKAPARK.CO.NZ LIMITED [2019] NZHC 1009 [9 May 2019].

up to pay the plaintiff. On the strength of that the matter was adjourned to Thursday 9 May 2019 to allow the plaintiff to confirm that payment had been received.

[4]        On 8 May 2019 I requested the Registry to follow up on whether payment had been made by the defendant and to have the plaintiff’s counsel to confirm whether payment had been received. Plaintiff’s counsel correctly noted that my prior Minute only called for the plaintiff to file a memorandum in the event that payment had been made but given the apparent evidence of payment previously before the Court, I asked counsel to check with all parties on who may have received the payment on behalf of the plaintiff.

[5]        Plaintiff’s counsel has provided a certificate on 9 May 2019 confirming that the debt remains unpaid and counsel has confirmed that he has made thorough checks.

[6]        A complication became apparent on the morning of 9 May 2019 when a further email from the director of the defendant company was received, referring to the company  having  been   removed   from   the   Companies   Office   Register   on   30 January 2019.

[7]        Section 241(2)A of the Companies Act 1993 (“the Act”) provides that the Court may not appoint a liquidator to a company that has been removed from the Register unless the company is first restored to the Register under s 329 of the Act.

[8]        The jurisdiction under s 329 of the Act that may be exercised by an Associate Judge. Section 329(1)(a)(ii) provides that the company may be restored if it at the time it was removed from the Register it was a party to legal proceedings. That is the case here, given the timing of the service of the proceedings that I have already referred to.

[9]        The email from the defendant’s director referring to the company being removed from the Register of Companies also maintains the claim that the payment was in fact made. She says:

From my side, the payment was processed when we had the money in one of our bank accounts, it has since closed so I have to go to the branch to see if it is a glitch at my end …

[10]      This is unconvincing, the director must know whether the payment has gone and the idea that the bank account from which the payment was made was closed at some unspecified time after the alleged payment does not make sense. No bank statement is produced showing the funds leaving the account. If the funds had been in the account and paid out and a bank statement to that effect produced establishing that the funds needed to be traced then that may be a different matter, but there is no evidence of that.

[11]      The defendant company has had a significant amount of time to pay this debt. The email on the morning of 9 May 2019 from the director of the defendant company raises a number of issues about the debt, but the reality is that the Court has been told over an extended period of time that the debt is going to be paid.

[12]There was no appearance on 9 May 2019 by the defendant company.

[13]      Counsel for the plaintiff has made an oral application for the defendant company to be restored to the Register. In the circumstances, I am satisfied that that is appropriate. Accordingly, there is an order under s 329(1) of the Act restoring Pickapark.co.nz Limited to the Companies Office Register.

[14]      Given counsel for the plaintiff’s careful investigation as to whether payment has been made, and his confirmation that payment has not been made, the plaintiff is entitled to the orders sought.

[15]      This matter was adjourned against the objection of the creditor at least twice previously and the Court is not prepared to adjourn it again.

[16]      Accordingly, there is an order placing Pickapark.co.nz Limited in liquidation. Grant Bruce Reynolds is appointed liquidator.

[17]      Liquidators’ remuneration approved in  accordance  with  his  consent  dated 1 February 2019, subject to s 284 of the Companies Act 1993.

[18]Costs to the applicant on a 2B basis.

Plus disbursements as fixed by the Registrar.

[19]Order timed at 10.26am on Thursday 9 May 2019.

Associate Judge Lester

Solicitors:

Gallaway Cook Allan, Dunedin