Taupo Hot Springs Ltd v Pukara Salud Limited HC Rotorua CIV 2007-463-302

[2007] NZHC 1824

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CIV 2007-463-302

BETWEEN  TAUPO HOT SPRINGS LTD Plaintiff

AND  PUKARA SALUD LIMITED Defendant

Hearing:         11 June 2007

(Heard at ROTORUA)

Appearances: Ms Brook for plaintiff

Mr Simonov for company

Judgment:      11 June 2007

ORAL JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE

Whitlock & Co, P O Box 91449, Taupo

S I Dmitrievick, P O Box 1654, Taupo

TAUPO HOT SPRINGS LTD  V PUKARA SALUD LTD HC ROT CIV 2007-463-302  11 June 2007

[1]      When this matter was called today Mr Simonov appeared.  I heard him even although he did not strictly speaking have rights of audience to represent the company, the company being a separate entity from himself.  As I understand it Mr Simonov is of the view that the defendant has a defence to the claim for appointment of liquidators.  He said that there was no agreement for the plaintiff to pay GST to the Inland Revenue on behalf of Pukara Salud Limited which seems to be the basis of the claim that the plaintiff brought against the defendant.

[2]      These matters were dealt with by a decision of the Disputes Tribunal on 27

January 2006.   The result of that hearing by the Disputes Tribunal was that the defendant was ordered to pay the plaintiff the sum of $4,351.84 within seven days. There was also an order that the defendant  pay the sum of $7,500 within seven days. There were a number of counter-claims but they were dismissed.  I understand that subsequently an appeal was filed against the determination of the Disputes Tribunal but the judgments were not cancelled or set aside.

[3]      On 22 March 2007 the plaintiff served a statutory demand on the defendant. The claimed amount was $13,379.56.   The statutory demand apparently included additional amounts for costs of enforcement of the debt, together with interest.  But irrespective of what the legitimacy of the claims is for the costs of enforcing the judgment, the original amounts claimed in the Disputes Tribunal were still sufficient to support a claim for liquidation of the company.

[4]      The statutory demand not having been complied with, the company issued proceedings 24 April 2007.

[5]      The only document filed by the defendant is a letter which Mr Igor Simonov wrote in June 2007.  That essentially reverses the matters that Mr Simonov made in his submission to me this morning that there was an absence of proof supporting the claims by the plaintiff.

[6]      I have attempted to explain to Mr Simonov that it is not my function to revisit the original judgment that the plaintiff obtained against the defendant.   Unless and until a Court of competent jurisdiction sets aside that judgment, whether by appeal or by judicial review or some other means, the judgment stands and the debt remains owing.  The statutory demand based upon that judgment therefore is valid.  Further the plaintiff has the standing  of creditor  sufficient  to  bring  the  proceedings  for liquidation.

[7]      The position then is that the company has not filed a statement of defence but it has indicated that it would wish to contest the proceedings on the ground that there was no sufficient evidence to support the debts claimed by the plaintiff.   For the reasons I have just explained that is not a defence.  The defendant company has not filed  any  material  that  bears  upon  its  solvency  and  accordingly  there  is  a presumption that the company is insolvent.   I have today received a certificate of counsel  as  to  non-payment  of  the  debt,  which  establishes  sufficiently  for  the purposes of this hearing that the debt has not been paid.   There are no additional reasons that I am aware which would entitle me to decline to make the order sought by the plaintiff and I accordingly make an order placing the defendant in liquidation. The Official Assignee is appointed liquidator.  The plaintiff will have costs on a 2B basis and disbursements  as fixed by the Registrar.  I have made this order at 11.20

a.m.

J.P. Doogue

Associate Judge