Super Power Earthmoving Limited v Dreamhome Construction Group Limited
[2024] NZHC 2139
•2 August 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2022-404-2440
[2024] NZHC 2139
BETWEEN SUPER POWER EARTHMOVING LIMITED
Plaintiff
AND
DREAMHOME CONSTRUCTION GROUP LIMITED
Defendant
Hearing: 17 July 2024 Appearances:
Sonali Ravindra for the Plaintiff Matt Taylor for the Defendant
Judgment:
2 August 2024
JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR
[Application to put a company into liquidation]
This judgment was delivered by me on 2 August 2024 at 3:00pm
pursuant to Rule 11.5 of the High Court Rules
…………………………. Registrar/Deputy Registrar
Solicitors:
Righteous Law (Sonali Ravindra), Auckland, for the Plaintiff Maria Taylor, Auckland, for the Defendant
Counsel:
Matt Taylor, Barrister, Meadowbank, Auckland, for the Defendant
SUPER POWER EARTHMOVING LIMITED v DREAMHOME CONSTRUCTION GROUP LIMITED [2024] NZHC 2139 [2 August 2024]
TABLE OF CONTENTS
Paragraph
Introduction [1]
Background [2]
Procedural history [5]
Super Power’s statement of claim [9]
Super Power’s submissions [11]
No substantial dispute over whether a debt is owed [12]
Dreamhome’s awareness and lack of action [14]
Dreamhome‘s solvency [15]
Dreamhome‘s statement of defence [17]
Dreamhome’s submissions [18]
Existence of substantial disputes concerning whether debts are actually owed [19]
Irregularities with the statutory demand [23]
Solvency [24]
Legal principles [25]
Analysis [26]
Substantial dispute [28]
Conclusion in respect of a substantial dispute [36]
The validity or otherwise of the payment claims [37]
Conclusion in respect of the payment claims [43]
The validity of the statutory demand issued by Super Power [44]
Conclusion on the statutory demand [45]
Solvency of Dreamhome [47]
Conclusion on solvency [50]
Result [51]
Orders [52]
Introduction
[1] The plaintiffs, Super Power Earthmoving Limited (Super Power), applies to have the defendant, Dreamhome Construction Group Limited (Dreamhome), put into liquidation.
Background
[2] It is common ground that Dreamhome engaged Super Power to perform construction work on several occasions in 2017. However, there is dispute over the nature of this work and whether it was actually performed. Super Power has provided invoices it alleges relates to work it performed for Dreamhome. Super Power allege that the invoices were “pursuant to verbal construction contracts between Super Power and Dreamhome in 2017”.
[3] There are four invoices issued by Super Power that are disputed by Dreamhome:
(a)Invoice 128, for alleged work done at 33 Yattendon Road, Saint Heliers, Auckland;
(b)Invoice 132, for alleged work done at 9 Mt Taylor Drive, Glendowie, Auckland;
(c)Invoice 155, for work also done at 9 Mt Taylor Drive; and
(d)Invoice 146, for alleged work done at 46 Huntington Drive, Huntington Park, Auckland.
[4] Aside from invoice 155, which Dreamhome admits and alleges it has already approved for payment, Super Power and Dreamhome dispute whether the work done was actually in respect of invoices 128, 132 and 146. They also dispute when Super Power issued the invoices. Super Power says that it first issued the invoices in 2017, while Dreamhome says that the invoices were first issued in 2020. Dreamhome has never paid the invoices, asserting that it had approved invoice 155 for payment
and, for the other three invoices, were unable to reconcile the claimed work with project details.
Procedural history
[5] Super Power claims that it served payment claims on Dreamhome on 22 September 2022 pursuant to the outstanding invoices.
[6] On 7 November 2022, Super Power issued a statutory demand for $220,536.62. This was served on 8 November 2022. No application was made by Dreamhome to set aside the statutory demand.
[7] On 12 January 2023, Super Power served liquidation proceedings on Dreamhome. The Court subsequently granted leave for Dreamhome to file its statement of defence out of time (the Judgment).1
[8]The matter was heard at a half-day hearing on 17 July 2024.
Super Power’s statement of claim
[9] Super Power says that Dreamhome failed to make the payment within 15 working days from the date it was served with the statutory demand and has also failed to file any application to set the statutory demand aside within 10 working days from the date it was served. Super Power asserts accordingly that Dreamhome is unable to apply its debts and is insolvent.
[10] Super Power claims $236,767.19 in its statement of claim. This is broken down as follows:
(a)$43,550.51 for the amount outstanding on the disputed invoices;
1 Super Power Earthmoving Ltd v Dreamhome Construction Group Ltd [2023] NZHC 2265.
(b)$190,273.18 in interest, calculated on the amount due and owing under all the invoices at the rate of 5 per cent per month, compounded monthly;
(c)$161.00 for the service fees of the statutory demand;
(d)$517.50 in legal costs incurred for the drafting and serving of the statutory demand;
(e)$1,725.00 in solicitors’ costs on filing the application for the liquidation order; and
(f)$540.00 for fees incurred in filing the application for liquidation order.
Super Power’s submissions
[11] Super Power says that Dreamhome is unable to apply its debts and is insolvent, on the basis that Dreamhome failed to make the payment within 15 working days from the date it was served with the statutory demand and have also failed to file any application to set the statutory demand.
No substantial dispute over whether a debt is owed
[12] Super Power further says that contrary to Dreamhome’s submissions, there is no substantial dispute over whether or not a debt is owed. Super Power says that the only questions relating to the alleged debts owed are:2
(a)whether the payment claims comply with s 20 of the Construction Contracts Act 2002 (the CCA); and
(b)whether the party applying to set aside the statutory demand had provided a payment schedule contesting its liability or paid the amount claimed by the due date.
2 Demasol Limited v South Pacific Industrial Limited [2022] NZCA 480 at [47].
[13] Super Power submits that the general merits of the claim are not open for consideration and are irrelevant in the statutory demand context. Further, Super Power says that the payment claims do comply with the CCA. Super Power also says that Dreamhome failed to provide payment schedules in accordance with s 21 of the CCA. In light of this, as well as Dreamhome’s alleged failure to pay the payment claims, Super Power says that Dreamhome is liable for the outstanding amounts.
Dreamhome’s awareness and lack of action
[14] Super Power says that Dreamhome has failed to provide any evidence that it disputed the invoices before the service of the statutory demand for payment. Super Power asserts that it first provided Dreamhome with invoices in 2017, and again in 2020 when the invoices were not paid. It says that it has acted reasonably, and that it “served payment claims first, thereby giving Dreamhome further opportunity to provide its payment schedule” and seek legal advice.
Dreamhome’s solvency
[15] Super Power says that Dreamhome’s solvency is unlikely to be a standalone ground for an arguable defence in liquidation proceedings, and that it is an important but not decisive factor against the exercise of the Court’s discretion.
[16] Super Power also says that the Court should not place too much weight on the fact that Dreamhome has deposited $43,540.51 into its solicitor’s trust account and that the Court’s main focus should be on whether Dreamhouse has an arguable defence. Super Power further submits that the payment is not evidence of Dreamhome’s solvency, and that Dreamhome has not provided any evidence regarding the source of the funds, whether the funds are able to be disbursed or whether the funds are subject to interest and recall by a lender if they are borrowed. It says that Dreamhome has provided no evidence of its ability to pay debts.
Dreamhome’s statement of defence
[17] Dreamhome’s statement of defence disputes the outstanding sums on the following grounds:
(a)The alleged debt relates to work purportedly carried out in 2017.
(b)With the exception of invoice 155 for $4,082.38, the alleged outstanding amount of $43,540.51 comprises invoices that are dated 2017, but were first issued to Dreamhome in 2020.
(c)These invoices are invalid and disputed in that:
(i)there was no contract between Super Power and Dreamhome in respect of the works claimed; and/or
(ii)the work allegedly performed in 2017 by Super Power was actually carried out by other third-party contractors engaged by Dreamhome; and/or
(iii)it was not possible for Super Power to have performed the alleged works claimed in its invoices as these were not works being done at the time.
(d)Dreamhome admits that Super Power’s claim for $4,062.38 in invoice 155 is valid and has previously advised Super Power that the invoice was approved for payment.
(e)In 2020, Super Power wrote to Dreamhome via a debt collection agent and Dreamhome responded disputing the alleged invoices.
(f)In 2022, Dreamhome corresponded with Super Power’s lawyers, and again disputed the alleged debt.
(g)There is no contractual basis for a claim of $190,273.18 in interest.
(h)The legal costs and disbursements claimed are not claimable within a statutory demand. In any event, Dreamhome further argues that the statutory demand is an abuse of process such that costs and disbursements are not appropriately due.
(i)Dreamhome admits that no application was made to set aside the statutory demand but says that:
(i)the demand was not properly served; and/or
(ii)the demand did not come to the attention of Dreamhome’s director; and/or
(iii)the demand is in any event an abuse of process.
(j)Dreamhome says it is solvent and has deposited $43,540.51 into the trust account of its solicitor.
Dreamhome’s submissions
[18] Dreamhome say that Super Power’s application for liquidation ought to be dismissed on the basis that:
(a)Super Power is not a creditor of Dreamhome;
(b)there is a substantial and genuine dispute as to the validity of the alleged debt/s underlying the invoices, the payment claims and the statutory demand;
(c)there are irregularities with the statutory demand that gave rise to the present proceedings; and/or
(d)Dreamhome has paid the “core debt” into its solicitor’s trust account, and there is no evidence that Dreamhome is unable to pay its debts.
Existence of substantial disputes concerning whether debts are actually owed
[19] Dreamhome disputes three of the alleged outstanding sums. Invoice 155 is accepted, but it says that invoices 128, 132 and 146 were only issued to them in 2020, despite being dated 2017. The invoices are disputed on the grounds set out at [17](c).
[20] In their submissions, Dreamhome relies on [61](a)–(c) of the Judgment to say that substantial disputes still exist over whether the alleged debts are actually owed. Dreamhome says that these disputes should be determined in ordinary civil proceedings issued for that express purpose.
[21] Dreamhome further submits that Super Power’s reliance on the provisions of the CCA is “misconceived”, as the existence of a construction contract has yet to have been established. They also dispute Super Power’s assertion that the “merits of the payment claim” are not open for consideration in the statutory demand context.
[22] Dreamhome also submits that the payment claims made by Super Power are invalid. Dreamhome says that it is arguable whether construction contracts were even formed in respect of the alleged work and invoices in question, and therefore says that the CCA does not apply. In the alternative, it says that even if the CCA did apply, the payment claims are invalid.
Irregularities with the statutory demand
[23] Dreamhome says that the statutory demand made by Super Power is invalid. In particular, it says that there was no claim for interest in the payment claims, nor does Super Power have a contractual right to interest.
Solvency
[24] Dreamhome says that they have continued to trade in the intervening period between 2017 and the present. Further, they say that the depositing of $43,540.51 into their solicitor’s trust account is evidence that it is solvent.
Legal principles
[25]Section 241 of the Companies Act 1993 provides:
241 Commencement of liquidation
(1) A company may be put into liquidation by the appointment as liquidator of a named person or of an Official Assignee for a named district.
(2) A liquidator may be appointed by—
(a) special resolution of those shareholders entitled to vote and voting on the question; or
(b) the board of the company on the occurrence of an event specified in the constitution; or
(c) the court, on the application of—
(i)the company; or
(ii)a director; or
(iii)a shareholder or other entitled person; or
(iv)a creditor (including any contingent or prospective creditor); or
(v)if the company is in administration, the administrator; or
(va)if the company is a financial markets participant, the FMA; or
(vi)the Registrar; or
(vii)if the company is a licensed insurer, the Reserve Bank of New Zealand; or
(viii)in the case of a company that has been removed from the New Zealand register, the Registrar or a person who, immediately before the company was removed from the New Zealand register, was a person described in subparagraph (ii), (iii), (iv), or (vii); or
(d) a resolution of the creditors passed at the watershed meeting held under section 239AT.
…
(3) An Official Assignee may be appointed liquidator of a company only—
(a) if the special resolution passed in accordance with paragraph (a) of subsection (2) is passed by reason of the Official Assignee exercising voting rights attaching to shares in the company of—
(i)a person who has been adjudged bankrupt; or
(ii)another company of which the Official Assignee is liquidator; or
(b) by the court.
The court may appoint a liquidator if it is satisfied that—
(a) the company is unable to pay its debts; or
(b) the company or the board has persistently or seriously failed to comply with this Act; or
(ba) the company, or 1 or more of its directors or shareholders, has intentionally provided the Registrar with inaccurate information; or
(bb) the company, or 1 or more of its directors or shareholders, has in a persistent or serious way failed to comply with duties relating to the company—
(i)under this Act; or
(ii)under the Financial Reporting Act 1993 while in force, except that this subparagraph does not apply after 5 years have elapsed after this subparagraph came into force; or
(c)the company does not comply with section 10; or
(d) it is just and equitable that the company be put into liquidation.
(5) The liquidation of a company commences on the date on which, and at the time at which, the liquidator is appointed.
Analysis
[26] The issue of whether Super Power is entitled to an order putting Dreamhome into liquidation resolves itself into the following questions:
(a)Does a substantial dispute exist as to whether the underlying debts on which the statutory demand and subsequent liquidation application is based are due and owing?
(b)What is the validity or otherwise of the payment claims made by Super Power on Dreamhome?
(c)What is the validity or otherwise of the statutory demand issued by Super Power?
(d)Is Dreamhome solvent?
[27]I deal with each of these questions set out in [26(a)] to (d) in turn.
Substantial dispute?
[28] Ms Ravindra, for Super Power, submits that there is no substantive dispute on the invoices. She points to the following:
(a)The invoices were submitted in 2017 and no dispute was raised at the time the invoices were submitted to Dreamhome.
(b)In 2020, Super Power engaged a collection agency that wrote to Dreamhome. Dreamhome did respond but with weak evidence to support objection to the invoices, including a cryptic message with the intention to be evasive when the debt collection agency pressured Dreamhome.
(c)When Super Power served the payment claims on Dreamhome on 22 September 2022, Dreamhome did not provide a payment schedule and did not dispute the payment claims.
(d)Following the service of the statutory demand on Dreamhome on 8 November 2022, Dreamhome raised no dispute but simply wrote to Super Power’s counsel asking for evidence of the work done. Such evidence was forwarded by email to Dreamhome on 15 November 2022.
[29] In summary, Ms Ravindra submits that Dreamhome has done no more than ask for evidence that work was undertaken, and such evidence was provided to Dreamhome on 15 November 2022.
[30] In relation to the specific projects to which the disputed invoices relate, Ms Ravindra submits as follows:
Yattendon
(a)Dreamhome has provided no evidence that Super Power was aware of the existence of the invoice exhibited to Mr Sun’s affidavit on 23 March 2023, which recorded an undated handwritten note. There is also no evidence the note was forwarded to Super Power and, if it was (which is denied), when this was done.
(b)Dreamhome has provided no evidence to support its assertion that, in July 2017, it was performing work in relation to the foundations and framing for the project and that no excavation work was being done on the project. The evidence provided shows no more than Dreamhome asking for quotes.
Mt Taylor
(c)Similarly, in relation to this property, Dreamhome has provided no evidence that Super Power was aware of the existence of the invoice exhibited to Mr Sun’s affidavit of 23 March 2023 recording the same undated handwritten note, and there is no evidence that the note was forwarded to Super Power and, if it was (which is denied), when this was done.
Huntington Park
(d)Similarly, in relation to this property, Dreamhome has provided no evidence that Super Power was aware of the existence of the invoice exhibited to Mr Sun’s affidavit of 23 March 2023 recording the same
handwritten note, and there is no evidence the note was forwarded to Super Power and, if it was (which is denied), when this was done. The invoice attached to Mr Sun’s affidavit does not provide evidence that Super Power did not undertake work at the Huntington address and the invoice relates to work undertaken prior to July 2017, whereas Super Power’s invoice was for work completed prior to December 2017.
[31] Ms Ravindra submits that, in summary, Dreamhome has not been able to provide evidence that Super Power was aware of any dispute in 2017.
[32] For Dreamhome, Mr Taylor submits that any substantial dispute regarding the relevant invoices has already been decided by the Court in the Judgment and, to that extent, the issue is res judicata. Mr Taylor points to [61(a)] of the Judgment where the Court concluded that there was a dispute existing between the parties relating to the relevant invoices. Mr Taylor submits there is no new evidence and no reason to depart from that finding.
[33] In answer to these specific points raised by Super Power in respect of each of the developments, Mr Taylor responds as follows:
Yattendon
(a)Dreamhome disputes one of the invoices for this project and the documentary evidence provided by Mr Sun shows that no excavation work was being done on the project at the time the works were allegedly performed by Super Power in July 2017.
Mt Taylor
(b)Dreamhome disputes the invoice as the work claimed in this invoice was in fact carried out by another contractor other than Super Power. Dreamhome did not engage Super Power to conduct any concrete cutting work.
Huntington Park
(c)Dreamhome disputes the invoice as it did not engage Super Power on the project at Huntington. Super Power carried out no work at the Huntington site.
[34] Mr Taylor submits Super Power has produced no evidence to the contrary and Mr Sun’s evidence is that Super Power first issued the invoices for work, allegedly carried out in 2017, in 2020, three years after the alleged work was conducted. He submits that, on receipt of these invoices in 2020, Dreamhome responded and notified Super Power in writing that its invoices were disputed except for one invoice which was approved.
[35] Mr Taylor submits Dreamhome advised Super Power in writing that the sums were disputed because the work claimed by Super Power was performed by third parties whom Dreamhome had paid, and there were no contracts with Super Power for the work claimed. He notes that Super Power did not respond at the time or provide any evidence to rebut Dreamhome’s position and, in fact, Super Power did nothing further until 2022 when it purported to issue payment claims under the CCA.
Conclusion in respect of a substantial dispute
[36] In my view, there is no change to the conclusions I reached in the Judgment that a dispute exists between the parties as to whether the works to which the disputed invoices relate were pursuant to a contract which existed between the parties or not, and whether the relevant works were carried out by Super Power. Accordingly, this dispute is to be resolved at trial.
The validity or otherwise of the payment claims
[37] Ms Ravindra submits that the only enquiries to be made in relation to an application to set aside a statutory demand in the context of the CCA are:3
3 Demasol Limited v South Pacific Industrial Limited, above n 2, at [47].
(a)whether the payment claims complied with s 20 of the CCA; and
(b)whether the party applying to set aside the statutory demand had provided a payment schedule contesting its liability, or paid the amount claimed by the due date.
[38] Ms Ravindra submits the payment claims rendered by Super Power comply with s 20 of the CCA because:
(a)they were in writing;
(b)the construction work is identified as transportation, excavation, exportation and concrete cutting at the Yattendon property, the Mt Taylor property and Huntington Park property;
(c)they identify the relevant periods between 10 July 2017 and 11 July 2017 for the Yattendon property; between 28 June 2017 and 8 December 2017 for the Mt Taylor property; and between 8 July 2017 and 17 November 2017 for the Huntington Park property;
(d)the payment claims state the claimed amount and the due date for payment of 20 October 2021, being 20 working days after the service of the payment claims;
(e)a table containing the invoices, their values and the sum of those values are provided in the payment claims and copies of the invoices were attached to the payment claims; and
(f)the claims were accompanied by a generic notice which outlined the process for responding to the payment claims, as well as the consequences of not responding to the payment claim and not paying the claimed amount in full.
[39] Ms Ravindra submits that Dreamhome did not provide any payment schedule contesting the validity of the payment claims, nor did it pay the amount in the payment
claims by the due date. Accordingly, Dreamhome is liable to pay the amount claimed as a debt due to Super Power pursuant to ss 22 and 23 of the CCA.
[40] In response, Mr Taylor submits that the existence of a construction contract has not been established and, unless such a contract is established, the CCA has no application. He suggests that based on the evidence available, Super Power has an alleged claim in quantum meruit.
[41] Mr Taylor submits that even if a construction contract existed, the payment claims do not comply with s 20 of the CCA, as they do not adequately specify the construction contract to which they relate (s 20(2)(b)) and do not adequately specify the construction work carried out (s 20(2)(c)).
[42] Mr Taylor submits that the assertion by Super Power that the merits of the payment claims are not open for consideration in the statutory demand context is plainly wrong. He submits that this application is not being considered in the “statutory demand context” but rather by way of an application for liquidation. He refers to the judgment of Associate Judge Bell in Concrete Structures (NZ) Limited v NMHB Limited,4 and concludes by submitting that there has been no finding that Super Power has standing as a creditor (an enquiry that would have been determined on an application to set aside the statutory demand). In these circumstances, the Court should approach this application on first principles to determine whether Super Power has such standing and, if so, whether there is a substantial dispute as to the alleged debt. He submits that, in other words, Super Power cannot simply stand on the assertion that unanswered purported payment claims (if valid) are determinative of the existence of a debt.
Conclusion in respect of the payment claims
[43] I am of the view that it is arguable that the payment claims submitted by Super Power to Dreamhome do not validly create a debt due by Dreamhome to Super Power under ss 22 and 23 of the CCA. The reasons for this are:
4 Concrete Structures (NZ) Limited v NMHB Limited [2019] NZHC 268.
(a)There is a dispute as to whether the payment claims comply with s 20 of the CCA, related to whether the claims adequately identify the construction contract and construction work to which they relate.
(b)If the payment claims are valid, there is an argument that Dreamhome’s communications in response are sufficient to constitute a payment schedule in substance.
(c)Even if the payment claims are valid and Dreamhome’s communications in response did not constitute a payment schedule, then it is arguable that, notwithstanding the decision in Demasol Limited, the Court is entitled to look at the underlying merits of the claims and whether there is a substantial dispute in the context of an application for liquidation. A distinction can arguably be drawn between the debt position established by the payment claims in the context of setting aside the statutory demand, and the status of payment claims in an application for liquidation. I note from the hearing of Dreamhome’s application to file a statement of defence out of time, reference was made to the decision of Laywood v Holmes Construction Wellington Limited.5 The Court of Appeal accepted the position that, although claims under the CCA may be determinative of an application to set aside a bankruptcy notice or a statutory demand, they may not be determinative in an application for adjudication of bankruptcy or for an order to liquidate the company. It is noted the Court deliberately left this issue undecided in the Laywood case and this argument is open to Dreamhome to pursue at trial.
The validity of the statutory demand
[44] Mr Taylor submits that the statutory demand is invalid as it includes a claim for interest. He submits that Dreamhome has no contractual right to interest and a claim for interest was not included within the payment claims. The interest claimed was $176,986.11 on a core debt of $43,550.51 — if interest cannot be claimed, the
5 Laywood v Holmes Construction Wellington Limited [2009] NZCA 35, [2009] 2 NZLR 243.
statutory demand substantially over-states that amount which may be due from Dreamhome. A statutory demand which significantly mis-states the amount due from the debtor is invalid.6
Conclusion on the statutory demand
[45] I am of the view that the statutory demand is arguably invalid for the following reasons:
(a)it has not been established that a contract for the construction works between Super Power and Dreamhome exists and, if it exists, whether it entitles Super Power to charge interest at the rates used to calculate the interest in the statutory demand; and
(b)the claim for interest was not included in the payment claims — arguably, there is a substantial mis-statement of the amount owing by Dreamhome in the statutory demand which, on the authority of Pioneer Insurance Company Limited, renders the demand invalid.
[46] If the statutory demand is invalid, then the application for liquidation based on it also cannot succeed.
Solvency of Dreamhome
[47] Ms Ravindra submits that solvency is unlikely to be a standalone ground for an arguable defence in liquidation proceedings, because if the debt is indisputably owing then it should be paid. She submits Dreamhome’s solvency is an important but not decisive factor against the exercise of the Court’s discretion.
[48] Ms Ravindra submits the Court should not place too much weight on the fact the funds are being held in a solicitor’s trust account as Dreamhome has provided no evidence that the sum of $43,540.51 was transferred from its own bank account or the
6 Pioneer Insurance Company Limited v White Heron Motor Lodge Limited [2009] NZCA 450, (2008) 19 PRNZ 286 at [54].
source of the funds. She points out there is no solicitor’s undertaking providing assurance that the funds are able to be disbursed if Super Power is successful in its opposition. She submits there is no evidence to convince the Court that the funds held in trust are not borrowed and subject to interest and re-call by a lender. She submits Dreamhome has provided no financial statements or other evidence of its solvency.
[49] Mr Taylor, in response, refers to the payment of the $43,540.51 into the trust account as evidence of solvency and says that Dreamhome at all times has been solvent and trading as a builder and residential property developer.
Conclusion on solvency
[50] In my view, the position is no different to the conclusion I reached at [73] of the Judgment. In that paragraph, I expressed a view that the position regarding the solvency of Dreamhome was neutral in relation to granting the application for leave. I am of the same view here: the position regarding the solvency of Dreamhome is neutral in relation to granting the application for liquidation.
Result
[51] As a result of the conclusions I have reached at [36], [43], [45] and [50], I am of the view that Super Power’s application for an order putting Dreamhome into liquidation should be dismissed.
Orders
[52]I make the following orders:
(a)Super Power’s application to put Dreamhome into liquidation is dismissed.
(b)As Dreamhome is the successful party, costs should follow the event. Counsel for Dreamhome has indicated that Dreamhome intends to seek increased costs. Counsel are directed to endeavour to agree costs and failing agreement being reached within a period of 20 working days
from the date of this judgment, counsel for Dreamhome will file a memorandum as to costs (not to exceed five pages) within 5 working days after the expiry of the 20 working day period, and counsel for Super Power will file a memorandum (not to exceed five pages) in response within 5 working days of receipt of counsel for Dreamhome’s memorandum. A decision as to costs will then be made on the papers.
…………………………….. Associate Judge Taylor
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