Rea v Lining Services Limited HC Auckland CIV 2008-404-2842

[2008] NZHC 2373

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2008-404-2842

UNDER  The Companies Act 1993

IN THE MATTER OF     Asten Building Limited (in Liquidation) BETWEEN  GERALD STANLEY REA AND PAUL

GRAHAM SARGISON Liquidators

ANDLINING SERVICES LIMITED (FORMERLY KNOWN AS AUCKLAND LINING SERVICES (2007) LIMITED AND AUCKLAND SERVICES LIMITED)

Other Party

Hearing:         11 June 2008

Appearances: R B Hucker for liquidators

Judgment:      17 June 2008

JUDGMENT OF ALLAN J

Solicitors:

Hucker & Associates, Auckland  [email protected]

GS REA AND ANOR  V LINING SERVICES LIMITED (FORMERLY KNOWN AS AUCKLAND LINING SERVICES (2007) LIMITED AND AUCKLAND SERVICES LIMITED) HC AK CIV 2008-404-2842 17 June

2008

[1]      This is an application by the liquidators for orders pursuant to ss 292-296 of the Companies Act 1993 in respect of certain allegedly voidable transactions.

[2]      Asten Building Ltd was placed in liquidation by special resolution of the shareholders of the company on 22 January 2007.  The liquidators were appointed to be liquidators of the company.   They subsequently served upon the Other Party a notice  to  set  aside  voidable  transactions.    The  sum  claimed  in  that  notice  was

$90,000.  At a later date the liquidators satisfied themselves that the payments made by  Asten  Building  Ltd  to  the  Other  Party,  relevant  to  the  notice  to  set  aside, amounted to $45,000 only and not the sum of $90,000 as claimed in the notice.

[3]      The Other Party filed a notice of objection within the time prescribed by s 294(3) of the Act;   thereafter the liquidators commenced this proceeding, which was set down for first mention on Wednesday 11 June 2008 at 10 am.

[4]      There  was  no  appearance  on  behalf  of  the  Other  Party  at  the  hearing. Mr Hucker for  the  liquidators,  produced  an  affidavit  of  service  which  he  noted contained an error, in that it specified that the hearing time stipulated in the papers served on the Other Party was 11 am on 11 June 2008, rather than 10 am.

[5]      The Other Party having filed no notice of opposition, it was called at 10 am on 11 June but there was no appearance.   I then released Mr Hucker, who had another commitment, and had the proceeding called outside the Courtroom again at

11 am.  There was no appearance on that occasion either.

[6]      In  all  the  circumstances  it  is  safe  to  conclude  that  the  application  is unopposed.    I  have  considered  Mr  Rea’s  affidavit,  and  am  satisfied  that  the liquidators have established their entitlement to the orders sought.

[7]      Accordingly, I make the following orders:

a)        There  will  be  an  order  setting  aside,  pursuant  to  s  294  of  the

Companies Act 1993, payments of $5000 each, made by Auckland

Lining Services Ltd to Asten Building Ltd (in liquidation) on 12 July

2006, 19 July 2006. 26 July 2006, 2 August 2006, 9 August 2006,

16 August 2006, 23 August 2006, 20 September 2006 and 4 October

2006, making in all a total of $45,000.

b)        The Other Party is directed to repay to the liquidators the sum of

$45,000, being the value of those transactions calculated pursuant to s 295 of the Companies Act, and directing that judgment be entered for such sum, together with interest and costs to be fixed  by the Registrar.

c)       The judgment is to carry interest at the rate of 7.5% per annum from the date of liquidation up to and including 30 June 2008, and at 8.4% per annum from and after 1 July 2008.

d)The Other Party is to pay the liquidators’ costs of and incidental to this application in accordance with category 2B.

C J Allan J