Registrar of Companies v The Treasury

[2020] NZHC 2518

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-001492

[2020] NZHC 2518

UNDER

Section 336 of the Companies Act 1955

IN THE MATTER

of an application to restore Davrey Construction Limited to the Companies Register

BETWEEN

THE REGISTRAR OF COMPANIES

Applicant

AND

THE TREASURY

First Respondent

PETER REGINALD HOWELL
Second Respondent

BARRIE MACKECHNIE BROWN

Third Respondent

Hearing:	On the papers
Counsel:	P J Bedogni for Applicant
Judgment:	25 September 2020

JUDGMENT OF VENNING J

This judgment was delivered by me on 25 September 2020 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

Solicitors:           Martelli McKegg, Auckland

Copy to:            Guy Caro, Companies Office, Auckland

THE REGISTRAR OF COMPANIES v THE TREASURY [2020] NZHC 2518 [25 September 2020]

[1]    The Registrar of Companies seeks an order restoring Davrey Construction Limited (Davrey) to the Register of Companies.

[2]    In a minute issued on 8 September 2020 Associate Judge Bell granted leave to the Registrar to apply by originating application and made directions for service. The Judge directed service on Audit New Zealand in addition to service on the Treasury as first respondent. The Judge did not consider it was necessary to serve Mr Askew, the former major shareholder of Davrey.

[3]    When the substantive application was called before the Court on 17 September 2020 counsel, Mr Bedogni, advised that the proceedings had been served but was unable to provide formal confirmation of the same. Also he did not have the proposed liquidators’ formal written consent. The matter was adjourned to be dealt with on the papers.

[4]    Counsel has now filed a memorandum attaching documentation which confirms service on the following parties has been effected:

·The Treasury;

·Audit New Zealand;

·Messrs Howell and Brown (the former liquidators).

[5]    In addition counsel has filed a copy of the proposed current liquidators’, Malcolm Grant Hollis and Craig Alexander Sanson, consent to act.

Background

[6]    Davrey was incorporated on 13 August 1973 and placed into liquidation on 11 May 1983. The Official Assignee was appointed provisional liquidator and then on 6 July 1983 the Court ordered Messrs Howell and Brown be appointed as liquidators.

[7]    In 2002 the liquidators sought to complete the liquidation of Davrey, but were unable to obtain a quorum of the Committee of Inspection. The liquidators proceeded

by postal vote. The creditors who voted by postal vote approved the fees but the liquidators were not certain that was the correct procedure. No final audit opinion was signed off by Audit New Zealand to enable the liquidation to be completed.

[8]    On 20 September 2012 the Registrar advertised her intention to strike Davrey from the Companies Register. Before the liquidation could be finalised Davrey was struck off on 21 December 2012.

[9]    Messrs Howell and Brown are no longer practising. Their firm PwC has approximately $160,000 in trust to be distributed to Davrey’s creditors.

[10]   In the circumstances the Court is satisfied that it is just and equitable that Davrey be restored to the Register to enable the replacement liquidators to finalise the liquidation and make distribution to Davrey’s creditors.

Orders

[11](a)       Davrey is to be restored to the Register pursuant to s 336(7) of the Companies Act 1955;

(b)Craig Alexander Sanson and Malcolm Grant Hollis are appointed as replacement liquidators;

(c)the legal costs and expenses of the application are to be borne by Davrey.

[12]   The Court also approves in principle the fee schedule as outlined in the liquidators’ consent to act dated 24 September 2020. An application is to be made at the conclusion of the liquidation to fix the liquidators’ remuneration.

Venning J