San La Mere Residents Society Incorporated v The Treasury of New Zealand

[2020] NZHC 752

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-000159

[2020] NZHC 752

UNDER

Section 324(4) of the Companies Act 1993

IN THE MATTER

Of an application for a vesting order

BETWEEN

SAN LA MERE RESIDENTS SOCIETY INCORPORATED

Plaintiff/Applicant

AND

THE TREASURY OF NEW ZEALAND

Defendant/Respondent

Hearing:

On the papers

Appearances:

S Elliott for the Plaintiff/Applicant

K Reinhold for the Defendant/Respondent

Judgment:

16 April 2020

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Thursday, 16 April 2020 at 4:00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:           Carson Fox Legal (M Carson), Auckland

The Treasury (K Reinhold), Wellington

Counsel:            S Elliott, Auckland

SAN LA MERE RESIDENTS SOCIETY INCORPORATED v THE TREASURY OF NEW ZEALAND [2020] NZHC 752 [16 April 2020]

[1]                  In a statement of claim dated 5 February 2020, San La Mere Residents Society Inc (the Society) seeks an order vesting properties described in Certificate of Titles 210800 and 137656 in the name of the Society. The Crown, the present owners of the properties, does not object to the vesting orders sought.

Background

[2]                  The properties were part of a subdivision on which 43 houses were to be built by a private developer in Gulf Harbour, Auckland. As part of its consent, the Rodney District Council required the developer to keep a total of 2,670m2 as a reserve area or pay a financial contribution to the Council. The Council also required that the reserve area be privately owned and managed by the Society.

[3]                  A reserve area was accordingly set aside by the developer. It comprises the properties described in Certificate  of  Titles  210800  and  137656,  being  Lot  4  DP 333574  (approximately  2,004m2,  being  the  primary  reserve  land),  Lot   1 DP 351478 (approximately 796m2, being an access lot) and Lot 5 DP 310748 (514m2, being another access lot). They comprise a green space within the subdivision and access to a number of internal lots and the green space itself. They have no other practical use and are covered by encumbrances and caveats to protect their use for the benefit of the Society.

[4]                  During the course of the development the properties were transferred to companies owned by the developer. The developer, however, went bust without transferring them to the Society. His companies were struck off the Companies Register. Pursuant to s 324 of the Companies Act 1993 all assets of the companies, including the properties, automatically vested in the Crown.

[5]                  The Treasury of New Zealand has, however, confirmed that the Crown does not object to the Court making an order vesting the properties in the Society. No other parties have an interest in the properties.

Discussion

[6]                  The first call of the Society’s application is in the Duty Judge list on 20 April 2020. Normally, an undefended statement of claim (other than for a liquidated demand) would then be set down for a formal proof hearing. In this case, however, all the affidavit evidence required for a formal proof hearing is already before the Court. Counsel for the plaintiff has nothing to add by way of further submissions and the Treasury has advised it will not appear. The Court therefore has everything before it necessary to determine the application.

[7]                  In addition, the nation is currently in a COVID-19 Level 4 lockdown and will be until at least 22 April 2020. Once the Level 4 restrictions are removed there will be pressure on the Court’s ability to give this case a timely oral hearing in Court. It is therefore in the interests of justice for the Society’s application to be determined on the papers.

[8]                  I am satisfied that the requirements of s 324(4) of the Companies Act are met in this case. The Society was entitled to receive the properties from the developer’s companies before they were removed from the Companies Register. It is appropriate for the vesting order to now be made.

[9]                  I therefore make an order under s 324(4) of the Companies Act 1993 vesting the properties in the name of the Society. There will be no order as to costs.

[10]              The first call of the application on 20 April 2020 is vacated and appearances of counsel excused.

Woolford J