Summerfield v Registrar of Companies

[2021] NZHC 1417

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2021-409-220

[2021] NZHC 1417

UNDER

the Companies Act 1993

IN THE MATTER

of an application under section 329 of the Companies Act 1993 for the restoration of a company “Maunsell Street Limited” (1767919) to the Register

BETWEEN

ANTON MICHAEL SUMMERFIELD

Applicant

AND

THE REGISTRAR OF COMPANIES

Respondent

Hearing:

(Determined on the papers)

Counsel:

J H B Hobcraft for the Plaintiff

J A Beach for Commissioner of Inland Revenue

Judgment:

15 June 2021

JUDGMENT OF ASSOCIATE JUDGE LESTER

This judgment was delivered by me on 15 June 2021 at 3.30 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar 15 June 2021

SUMMERFIELD v THE REGISTRAR OF COMPANIES [2021] NZHC 1417 [15 June 2021]

[1]    Mr Anton Michael Summerfield (the applicant) has applied for an order restoring Maunsell Street Limited (the company) to the New Zealand Companies Register (the Register).

[2]    The company was removed from the Register on 14 November 2016 for not filing annual returns. However, at the time the company was removed it was carrying on business as a residential property investor and landlord in Christchurch in respect of an apartment in the complex known as Wilton Close. That activity continues to this day.

[3]    The body corporate of Wilton Close has recently negotiated an insurance and EQC settlement and has voted to sell all units in the complex to a group of Christchurch property developers. That decision has drawn to the attention of all concerned that the company is no longer on the Register.

[4]    There is some urgency in this application being considered given the transaction referred to above is due to settle on 18 June 2021 and if it does not settle there is the potential for significant penalty interest.

[5]    The application first came before Associate Judge Paulsen earlier this month, who issued a Minute on 3 June 2021 drawing the attention of counsel for the applicant to the requirements in Re Durweston Properties Ltd.1

[6]    Having received that Minute, applicant’s counsel has now filed a consent form on behalf of the Registrar of Companies and a letter from the Treasury confirming that the Secretary to the Treasury has no objection to the restoration of the company.

[7]    Counsel for the applicant has also liaised with the Inland Revenue as to the tax responsibilities of the company given that it continued to receive rental income but has apparently not filed tax returns.

1      Re Durweston Properties Ltd (1952) 6 PRNZ 95 (HC).

[8]    Given the company is still the registered proprietor of the unit, it is necessary for it to be restored to the Register in any event. The sale of the apartment complex makes it all the more necessary.

[9]    Accordingly, there is an order pursuant to s 329 of the Companies Act 1993 restoring Maunsell Street Limited, being company no. 1767919, to the Register.

[10]   The registration of the company to the Register is intended to take effect immediately. However, as a condition of the restoration, the applicant and the restored company are to file the company’s income tax returns for the 2017 to 2021 years (inclusive) by 9 July 2021. The restoration of the company is further on the condition that in the event the sum already lodged with the Registrar to meet anticipated tax liabilities is insufficient, that the applicant and the company shall pay any shortfall forthwith.

Associate Judge Lester