Premium Mobility Services Limited v Delta Shared Services Limited - [2022] NZHC 3021

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-002450

[2022] NZHC 3021

UNDER the Companies Act 1993

IN THE MATTER

of liquidation proceedings

BETWEEN

PREMIUM MOBILITY SERVICES LIMITED

Plaintiff

AND

DELTA SHARED SERVICES LIMITED

Defendant

Hearing: (On the papers)

Counsel:

James Hakaria for the Plaintiff

Defendant in Person (through Director of Shareholder Murray Osmond)

Date of Minute:

18 November 2022

JUDGMENT OF MOORE J

[On application to recall liquidation order]

This judgment was delivered by me on 18 November 2022 at 1:00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar / Deputy Registrar Date:

PREMIUM MOBILITY SERVICES LIMITED v DELTA SHARED SERVICES LIMITED [2022] NZHC 3021
[18 November 2022]

Introduction

[1] On 27 May 2022, Associate Judge Andrew (as he then was) made an order that the defendant company, Delta Shared Services Ltd (“Delta”), be put into liquidation.

[2] Mr Osmond, who describes himself as the director of Delta Private Equity Ltd (Delta’s parent company), applies to recall Associate Judge Andrew’s order on the grounds that in making it, the Judge was materially misled by the plaintiff’s counsel.

[3] In the normal course of events, the application would be referred to the Judge who made the order. However, Associate Judge Andrew is unavailable, so the file has been referred to me in my capacity as Civil List Judge.

Procedural history

[4] The procedural history, although not overly complex, requires some detailed analysis in order to properly understand the competing accounts and determine the application.

Proceedings

[5] The plaintiff commenced its proceedings to place Delta in liquidation by way of statement of claim dated 20 December 2021. The essence of the claim is that various invoices payable by Delta to the plaintiff totalling more than $113,000 remained unpaid as at the time of filing and that further defaults were expected up to a sum of some $129,000. The matter was given a first call date of 1 April 2022.

First call

[6] Prior to the first call, Mr Hakaria, counsel for the plaintiff, filed a memorandum dated 30 March 2022. This recorded that although Delta had been served with a notice of proceeding, statement of claim and memorandum of counsel, the supporting affidavit was unsworn due to the disruptions of COVID-19. As a consequence, r 31.12 of the High Court Rules 2016 (“the Rules”), which requires relevant documentation to be served on the defendant not less than 15 working days before the date of the hearing, was unable to be complied with. Mr Hakaria thus asked for an adjournment

of one month to allow the affidavit to be served on Delta, noting that Delta had taken no steps of any kind in the proceeding and would not be prejudiced in the event an adjournment was granted.

[7] On 31 March 2022, Associate Judge Gardiner granted the plaintiff’s application on the papers. She minuted the Court file in the following way:

“The first call of this matter is adjourned…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NZHC 3021
Decision Date: 18 November 2022

CaseChat Overview and Summary

In the High Court of New Zealand, Premium Mobility Services Limited applied for Delta Shared Services Limited to be liquidated on the basis that Delta owed Premium Mobility Services Limited over $113,000 and had failed to pay it. Associate Judge Andrew made the order sought by Premium Mobility Services Limited. Delta Shared Services Limited sought to have the order recalled on the basis that the plaintiff’s counsel had misled Associate Judge Andrew about the purpose of an earlier adjournment. The court held that the application to recall should be dismissed. The court found that the plaintiff’s counsel had not misled the court and that, in any event, the court was not materially misled. The court also found that service of the statutory demand had been properly effected and that the claimed defence of privity of contract should not be permitted to be pleaded.

Orders