NZ Safety Brokers NZ Limited v Safety Simplified Ltd

[2016] NZHC 624

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CIV-2016-412-000018 [2016] NZHC 624

UNDER	the Companies Act 1993
BETWEEN	NZ SAFETY BROKERS NZ LIMITED Applicant
AND	SAFETY SIMPLIFIED LTD Respondent

Hearing:	7 April 2016
Appearances:	B L Gray for the Applicant A M Cunninghame for the Respondent
Judgment:	7 April 2016

JUDGMENT OF ASSOCIATE JUDGE OSBORNE AS TO SETTING ASIDE APPLICATION

[1]      A  statutory  demand  was  served  on  the  applicant  (NZ  Safety)  by  the respondent  (Safety  Simplified  Ltd)  on  or  about  26  January  2016.    Within  the required period, the applicant filed an application for an order setting aside the statutory demand.

[2]      NZ Safety filed with its application an affidavit of Graeme Roper, as director, in which Mr Roper deposed “the applicant is solvent and is able to pay its debts as they fall due”.  (The affidavit was sworn 10 February 2016).

[3]      Mr Roper deposed:

The applicant disputes that the sum of $25,000 demanded in the demand is adequately described and in any event, no such sum is due and owing by the applicant to the respondent.

NZ SAFETY BROKERS NZ LIMITED v SAFETY SIMPLIFIED LTD [2016] NZHC 624 [7 April 2016]

[4]      Mr Roper went on to state simply that the applicant:

… has a counterclaim which renders the demand less than the prescribed

amount.

[5]      No other details were provided of the dispute or the counterclaim.

[6]      Mr Roper concluded his affidavit by stating that once NZ Safety had had a chance to review its file in more detail, and provide its solicitor with its complete instructions, he would be in a position to file a more comprehensive affidavit.

[7]      The affidavit of Mr Roper contains insufficient detail to amount to anything more than a bare assertion of the existence of either a genuine dispute or a counterclaim.   On the basis of the evidence as it is before the Court, there is no sufficient basis to justify the Court upholding the application.

[8]      Safety  Simplified  filed  a  notice  of  opposition  and  served  an  extensive affidavit of its director, Matthew Derry.  Mr Derry explained in detail why the debt claimed was due and owing.   That affidavit was filed and served on 19 February

2016.

[9]      Despite Mr Roper’s statement on oath that he would be in a position to file a more comprehensive affidavit once he had provided details to his solicitor, he did not do so.

[10]     It appears from what Mr Gray has said this morning that it was anticipated by Mr Roper that the debt would be paid in due course.  He anticipated that there would have been discussions between the parties in the meantime and that the debt would be satisfied from the sale of a franchise which is now to settle on the 10th  of May

2016, one month away.   Those are matters of stated aspiration on the part of the applicant and are not strictly in evidence before the Court. There is a continuing lack of evidence of the dispute or counterclaim.   As between the parties, the sole responsibility for the failure to provide such evidence lies with NZ Safety.

[11]     Safety Simplified  has  done  all  that  is  required  of  it  on  an  interlocutory proceeding.

[12]     Mr Gray informs me from the bar that some two or three days ago, when he had contact with Ms Cunninghame’s instructing solicitor, it was then indicated that Safety Simplified would be adopting the approach it has taken this morning, namely of seeking to have the application dismissed.   The implication of Mr Gray’s information was that the position adopted by Safety Simplified was seen by NZ Safety as somehow unexpected or unreasonable.

[13]     The Court can have no sympathy with NZ Safety in relation to that state of its evidence.   Although  applications  of this  nature  are  generally regarded  as  being allocated a date of first call, it is a hearing date and all counsel understand that if either party is in a position to properly claim judgment on the day, they are entitled to  do  so.    The  failure  of  NZ  Safety to  provide  proper  evidence  to  support  its application means that it is appropriate to dismiss this application.

[14]     There has been no formal application for a general adjournment.  The reality was that, if I were adjourning the case today, it would have been to a fixture.  A later fixture is not required.   NZ Safety was entitled to come to today’s hearing on the basis of the evidence filed.

Order

[15]     I order:

(a)       The application to set aside the statutory demand is dismissed;

(b)If  the  applicant  does  not  pay the  sum  demanded  in  the  statutory demand within 10 working days of today’s judgment, the respondent will be entitled to present a  proceeding for the liquidation of the applicant.

Costs

[16]     Having given the above judgment, I have heard briefly from counsel as to costs.  Costs must follow the event.  I am satisfied that they should be on a 2B1 basis.

1      High Court Rules: Category 2 under r 14.3(1) and band B under r 14.5(2).

Mr Gray responsibly accepted that he could not make submissions otherwise in the light of my earlier judgment.

[17]     I order that the applicant pay the costs of this proceeding on a 2B basis together with disbursements to be fixed by the Registrar.

Associate Judge Osborne

Solicitors:

Duncan Cotterill, Christchurch

Counsel: B L Gray, Barrister, Dunedin
Anderson Lloyd, Dunedin