Parker v Ewp Investment Trustee Limited HC Auckland CIV-2010-404-6287

[2010] NZHC 2437

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-6287

UNDER  the Companies Act 1993

IN THE MATTER OF     an application under s 91 to Rectify the

Share Register

BETWEEN  MARGARET MIRIAM PARKER Applicant

ANDEWP INVESTMENT TRUSTEE LIMITED

Respondent

Hearing:         16 December 2010

Counsel:         JB Samuel for applicant

GAD Neil for Official Assignee

Judgment:      16 December 2010 at 10:27 AM

(ORAL) JUDGMENT OF ASSOCIATE JUDGE FAIRE [on without notice application to rectify the share register]

Solicitors:           Jennifer G Connell, PO Box 29 172, Greenwoods Corner

Meredith Connell, PO Box 2213, Auckland 1140

PARKER V EWP INVESTMENT TRUSTEE LIMITED HC AK CIV-2010-404-6287 16 December 2010

[1]      There  are  two  applications  which  require  examination.    The  first  is  the without notice application for permission to issue an originating application for rectification of a share register.  The second is the substantive application which is made without notice for rectification of the respondent’s share register.

[2]      There  is  precedent  for  dealing  with  such  an  application  by  way  of  an originating application: Masson v Barloy Enterprises Ltd[1]  CIV 2009-404-5243 and Masson v Whitehills Property Ltd.[2] CIV 2009-404-5244.   Accordingly, I order granting permission to the applicant to commence a proceeding for rectification of the respondent’s share register by way of a without notice originating application.

[1] Masson v Barloy Enterprises Ltd HC Auckland CIV 2009-404-5243, 23 September 2009.

[2] Masson v Whitehills Property Ltd HC Auckland CIV 2009-404-5244, 23 September 2009.

[3]      When this file was first presented to me I was concerned as to whether the applicant’s status to bring this application arose from the fact that she was appointed the executrix pursuant to her late husband’s will.  That led me to ask the question whether she had standing because the Official Assignee had, by an order of court sealed on 5 October 2009, been appointed administrator pursuant to s 385 of the Insolvency Act 2006.  On that basis the Official Assignee was invited to attend on a pickwick basis.  I am grateful to Mr Neil for his helpful memoranda and assistance.

[4]      Mr  Samuel  has  drawn  attention  to  the  basis  for  Mrs  Parker’s  current application.   She does not rely on her late husband’s will but rather relies on her appoint as trustee of the EWR Parker Family Trust.  Her appointment as trustee was made by the settler of that trust and pursuant to clause 10 of the trust on 23 August

2010.

[5]      The trust is the sole shareholder of the respondent company.   Mrs Parker therefore  is  a  shareholder  in  terms  of  the  definition  contained  in  s 96  of  the Companies Act 1993.

[6]      In terms of s 91 of the Companies Act 1993 she is a person who is currently omitted from the share register of the respondent or is, alternatively, an agreed

person and is therefore entitled to an order that her name be entered on the register of the respondent for the total share capital of the respondent.

[7]      Accordingly,  I  make  orders  in  terms  of  paragraph  1  of  the  originating application as moved.  In doing so I confirm that I exercise this jurisdiction on an

without notice basis and in chambers.

JA Faire

Associate Judge