Radaka Company Limited v 154 Grey Street Limited

[2012] NZHC 3301

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2012-404-005193 [2012] NZHC 3301

UNDER  Sections 241 and 246 of the Companies Act

1993

BETWEEN  RADAKA COMPANY LIMITED First Plaintiff

ANDOWEN MICHAEL BOASE Second Plaintiff

AND154 GREY STREET LIMITED Defendant

Hearing:         6 December 2012

Counsel:         A J Scott and E Grove for the Plaintiffs

No Appearance for the Defendant

Judgment:      6 December 2012

[ORAL] JUDGMENT OF WYLIE J

Distribution:

E Grove: [email protected]

A Newlands: [email protected]

RADAKA COMPANY LIMITED & ANOR V 154 GREY STREET LIMITED HC AK CIV 2012-404-005193 [6

December 2012]

[1]      The first and second plaintiffs seek that the defendant should be placed into liquidation on just and equitable grounds pursuant to s 241(4)(d) of the Companies Act 1993.

[2]      I am advised by both Ms Scott and Mr Grove, appearing for the plaintiffs, that  there  is  a  deadlock  in  the  management  of  the  company  and  that  the  two directors, the second plaintiff Mr Boase, and a Mr Andre Newlands, are unable to effectively co-operate the one with the other.

[3]      The  application  was  filed  on  4  September  2012.    It  was  called  before Associate Judge Faire on 6 September 2012.  Associate Judge Faire sought further information from counsel on various matters.  At that stage, the application had not been served on the defendant company.  It seems that Mr Newlands was unaware of the application.  Certainly, he is not mentioned in a minute issued by Associate Judge Faire on 6 September 2012.

[4]      The matter was called again before Associate Judge Faire on 7 September

2012  by  way  of  a  telephone  case  management  conference.     At  that  stage, Mr Newlands  did  enter  an  appearance  as  a  director  of  the  defendant  company. Associate Judge Faire adjourned the application to appoint an interim liquidator, ordered that that application should be considered on 12 October 2012 and required the  plaintiffs  to  formally  serve  the  application  on  the  registered  office  of  the defendant company, in accordance with the High Court Rules.

[5]      Service was effected on 21 September 2012 by a Mr Carr.  An affidavit of service has been filed in that regard.

[6]      The matter was called before Associate Judge Christiansen on 12 October

2012.    He  appointed  a  Mr  Grant  Bruce  Reynolds  as  interim  liquidator  of  the company.

[7]      The matter has been called before me today.  There has been an appearance entered first by Ms Scott and then by Mr Grove, after I raised one or two procedural difficulties with Ms Scott. The following are clear:

(a)      The  proceedings  have  been  advertised  in  compliance  with  the High Court    Rules.       An    affidavit    has    been    filed    by    a Danielle Stevenson verifying proof of advertising;

(b)Mr Reynolds has filed a notice confirming that he consents to act as both interim and final liquidator of the company;

(c)      No defence has been  filed or served in  respect of the liquidation proceedings;

(d)The only address provided by Mr Newlands is an email address.  The Registrar sent an email to that address on 16 October 2012, advising that the matter was to be called before me in the Duty Judge list this morning.

(e)       No steps have been taken by Mr Newlands;

[8]      I have heard this morning from Mr Grove.  He confirms that Mr Newlands has not made contact with him in recent times.   Mr Grove does understand that Mr Newlands  has  been  dealing  with  Mr  Reynolds  in  his  capacity  as  interim liquidator.

[9]      I am satisfied that it is appropriate to place the company into liquidation. Accordingly, I order that the company be placed into liquidation by the Court pursuant to s 241(4)(d) of the Companies Act 1993 and Mr Grant Bruce Reynolds be appointed as liquidator. This order is made at 11.40 am on 6 December 2012.

[10]     The plaintiffs seek an award of costs calculated on a 2B basis according to scale, together with disbursements.  Detail of the costs calculation and disbursements have been provided.  I make an order in favour of the plaintiffs against the defendant

of $1,990, together with disbursements totalling $991.81.

Wylie J