Singliworld Pte Limited v Registrar of Companies

[2016] NZHC 628

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-470 [2016] NZHC 628

UNDER	the Companies Act 1993
IN THE MATTER	of an application for an order that a company, United Markets Limited, not be removed from the Companies Register
BETWEEN	SINGLIWORLD PTE LIMITED Applicant
AND	THE REGISTRAR OF COMPANIES Respondent

Hearing:	11 April 2016
Counsel:	HP Holland for applicant No appearance for respondent
Judgment:	11 April 2016

(ORAL) JUDGMENT OF FAIRE J

This judgment was delivered by me on 11 April 2016 at 10:08 am pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Simpson Lawyers, Auckland (S Tong)

Singliworld PTE Limited v The Registrar of Companies [2016] NZHC 628 [11 April 2016]

[1]      The applicant seeks an order pursuant to s 323 of the Companies Act 1993 that Union Markets Ltd not be removed from the Company Register.

[2]     A notice from the Registrar of Companies discloses that the Registrar commenced the removal from the register process because Union Markets Ltd had failed to file its annual return.

[3]      Moore J granted the applicant leave to bring this application by originating application on 16 March 2016.  The application has been served on the Registrar of Companies.  The Registrar has accepted the applicant’s objection to the removal of Union Markets Ltd from the Companies Register and has required this application to be made.

[4]      The Registrar of Companies advises that the Registrar abides the decision of the court in relation to this application.

[5]      A search of Union Markets Ltd discloses that its directors are in Cyprus and Australia.  The only shareholder is the director who resides in Cyprus.  I am satisfied that little would be gained, in this case, by directing service on the shareholder and directors,  having  regard  to  the  failure  to  comply  with  the  provisions  of  the Companies Act.

Background facts

[6]      Union Markets Ltd was trading as a foreign exchange dealer.  The applicant’s

director, Leong Koon Wah, has filed an affidavit which discloses that:

a)       The  applicant  is  a  Singaporean  company  trading  as  a  foreign exchange introducing broker;

b)Union Markets Ltd was a financial service provider trading in foreign exchange until it was deregistered by the Financial Markets Authority on 26 September 2015;

c)       The applicant company introduced customers to Union Markets Ltd and placed the customers’ funds in accounts with Union Markets Ltd; and

d)Following the deregistration the applicant requested Union Markets Ltd to close all its customers’ accounts and refund all funds.  Funds amounting to US$15,844,734 remain outstanding.

[7]      I am satisfied that the jurisdictional requirements for the making of an order in this case have been met.

[8]      The application is made in reliance on s 321 of the Companies Act 1993. The relevant parts of that section for the purposes of this application are the following:

321        Objection to removal from register

(1)       Where a notice is given of an intention to remove a company from the New Zealand register, any person may deliver to the Registrar, not later than the date specified in the notice, an objection to the removal on any one or more of the following grounds:

…

(d)      That the person is a creditor, or a shareholder, or a person who has an undischarged claim against the company;

[9]      Section 323 of the Companies Act 1993 provides

323        Powers of Court

(1)       A person who gives a notice objecting to the removal of a company from the New Zealand register  on a ground specified in  section

321(1)(d), (e), or (f) of this Act may apply to the Court for an order

that the company not be removed from the register on any ground set out in that subsection.

(2)        On an application for an order under subsection (1) of this section, the Court may, if it is satisfied that the company should not be removed from the register on any of those grounds, make an order that the company is not to be removed from the register.

[10]     I am satisfied that the discretion conferred on the court by s 323(2) of the Companies Act may be exercised by making the orders sought.  The applicant does have an undischarged claimed Union Markets Ltd.

Orders

[11]     I order that:

a)        Union  Markets  Ltd  shall  not  be  removed  from  the  New  Zealand

Register of Companies; and

b)A sealed copy of this order shall be lodged with the Registrar of Companies  and  shall  be served  on  the registered office  of Union Markets Ltd, namely Plaza Level, Regus, 41 Shortland Street, Auckland, 1010, New Zealand.

Costs

[12]     Costs are reserved.  I record at this stage that the question of costs may not be able to be resolved until a proceeding is issued against Union Markets Ltd.  For that

reason, no further direction is made at this time.

JA Faire J