Provida Foods Ltd v Foodfirst Limited HC Hamilton CIV 2009-419-1581

[2011] NZHC 498

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV 2009-419-1581

BETWEEN  PROVIDA FOODS LTD Applicant

ANDFOODFIRST LIMITED Respondent

Hearing:         18 May 2011

Counsel:         MD Branch and SJ Rawcliffe for applicant/respondent

DA Campbell and ML Broad for respondent/applicant

Judgment:      18 May 2011 at 5:00 PM

JUDGMENT OF FAIRE J

This judgment was delivered by me on 18 May 2011 at 5pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Harkness Henry, Private Bag 3077, Hamilton

Kensington Swan, Private Bag 92 101, Auckland

PROVIDA FOODS LTD V FOODFIRST LIMITED HC HAM CIV 2009-419-1581 18 May 2011

[1]      foodfirst  Ltd  (“foodfirst)  applies  for  an  order  recalling  my  judgment

delivered on 21 February 2011.

[2]      I shall not, in this judgment, record the full background which is set out in the judgment.

[3]      Suffice to say, the problem at the heart of the recall application was a misunderstanding on my part as to Provida Foods Limited’s (“Provida) position and, in particular, what should be paid to it in the event that its shares in foodfirst were redeemed.

[4]      The constitution of foodfirst defines the transfer price to be paid as:

The price fixed by the company’s auditors on the basis of the last audited accounts then available and on the basis of the net book value as therein disclosed.

[5]      When that is taken into account and, on the now expressed basis that there is no agreement as to what is the appropriate sum to be paid to Provida for its shares if they are redeemed, the problem can be rectified by an amendment to [123](c)(ii) of my judgment so that it records the following position:

(ii)Until  production  to  the  Registrar  of  a  resolution  of  the  board  of directors of foodfirst authorising the redemption of 4,999 shares held by Provida plus a certificate from the auditors of foodfirst fixing the price of the 4,999 shares in accordance with the constitution of foodfirst, plus a solvency certificate which complies with the Companies  Act  1993,  s 70.    In  the  event  that  this  part  of  the conditional order is met and the Registrar is provided with evidence that the shares have been redeemed, the Registrar shall pay the sum as certified by the auditors of foodfirst to the solicitors for the applicant and  the  sum  being  the  balance,  ie  $416,983  minus  the  amount certified by the auditors to the solicitors for the respondent.   The interest in respect of those sums shall be apportioned in accordance with the capital payments that I have directed to be paid.

[6]      The  proposed  amendment  to  the  judgment  was  discussed  with  counsel. Counsel advised that they consented to my recalling the judgment and reissuing it with [123](c)(ii) in the amended form to which I have made reference.

[7]      Accordingly, I recall the judgment of 21 February 2011.   I re-issue it with

[123](c)(ii) amended as indicated in this judgment.

[8]      Costs in relation to this application are reserved and are subject to the general direction dealing with costs as set forth in my judgment of 21 February 2011.

JA Faire J