Tawa Plumbing Warehouse Limited v Registrar of Companies
[2017] NZHC 1365
•20 June 2017
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2017-485-322 [2017] NZHC 1365
UNDER Section 329 of the Companies Act 1993 IN THE MATTER
of an application by Tawa Plumbing Warehouse Limited for an order that Network Plumbing Limited (1472609) be restored to the Companies Register
BETWEEN
TAWA PLUMBING WAREHOUSE LIMITED
Applicant
AND
REGISTRAR OF COMPANIES First respondent
DAVID WILLIAM HERCUS Second respondent
DENISE DIANE BLAKE Third respondent
FLETCHER CONCRETE AND INFRASTRUCTURE LIMITED Fourth respondent
FLETCHER STEEL LIMITED Fifth respondent
SECRETARY OF THE TREASURY Sixth respondent
Hearing: 20 June 2017 Appearances:
C Gubb for the applicant
No appearances for the respondentsJudgment:
20 June 2017
ORAL JUDGMENT OF ASSOCIATE JUDGE SMITH
TAWA PLUMBING WAREHOUSE LIMITED v REGISTRAR OF COMPANIES [2017] NZHC 1365 [20 June 2017]
[1] Tawa Plumbing Warehouse Ltd (the Applicant) applies for an order under s
329 of the Companies Act 1993 (the Act) restoring Network Plumbing Ltd
(Network) to the Register of Companies.
[2] Network ceased trading in July 2014. At that point it owed the applicant
$70,434. A statutory demand served in August 2015 did not result in any payment. [3] On 8 July 2016 Network was removed from the Companies Register.
[4] The applicant did hold a guarantee for the amounts due to it, which had been given by Network’s sole director and shareholder, Mr Hall. However Mr Hall is now deceased and his estate has been administered.
[5] The applicant believes that at the time Network ceased trading it had assets that were sold or transferred into a new company which had been incorporated on
16 May 2014, Network Plumbing Group Ltd (Network Plumbing), or into a company called Laser Plumbing Group with which either Network or Network Plumbing went into business at or about that time. The applicant believes that the only way it can investigate what it says was a dissipation of Network’s assets is through having Network restored to the Register, and a liquidator appointed to investigate its affairs.
[6] On 26 April 2017 orders were made permitting the applicant to bring its proceeding by way of originating application. The respondents have all now been served with the application, and none has filed any opposition or indicated that it wishes to be heard on the application.
[7] I am satisfied that there is jurisdiction to make an order under s 329 restoring Network to the Companies Register. An application for such an order may be made by a creditor or a person who has an undischarged claim against the company (s 329(1)(a)(iv)), and the evidence sufficiently establishes that the applicant is within that category.
[8] I am also satisfied on the evidence that it is appropriate to make the orders sought, so that a liquidator can be appointed and any questionable transactions of Network can be properly investigated. There will accordingly be an (unqualified) order under s 329 of the Act restoring Network to the Register of Companies.
[9] The applicant also invites me to make an immediate order liquidating Network under s 241(4)(d) (the “just and equitable” ground for liquidation) of the Act. Mr Vance and Mr Owens have provided forms of consent to appointment if the court should make a liquidation order.
[10] The applicant submits that it is within the inherent jurisdiction of the court to order liquidation notwithstanding that advertising of a liquidation claim has not been carried out in accordance with the requirements of pt 31 of the High Court Rules.
[11] The applicant refers in support to the decision of Associate Judge Osborne in Official Assignee v Registrar of Companies and Anor, in which the Associate Judge was prepared to make an immediate liquidation order in circumstances similar to the present.1 The company in that case did not have a qualifying director, contrary to s 10 of the Act, and there was an impasse, or deadlock, between the shareholders which the Associate Judge regarded as a classic ground for winding up on the just and equitable ground in the Act.
[12] Associate Judge Osborne does not appear to have referred to the requirements of r 31.3 of the High Court Rules that an application to the court to put a company into liquidation must be made by statement of claim (r 31.3) and advertised in accordance with r 31.9.
[13] I accept that r 1.5 of the High Court Rules has occasionally been used to allow liquidation to proceed in the absence of advertising in accordance with r 31.9, but as Associate Judge Robinson noted in Official Assignee v Numero Uno
Investments Ltd such circumstances will be extremely limited.2
1 Official Assignee v Registrar of Companies and Ben Cruachan Ltd (struck off) [2016] NZHC
1176.
2 Official Assignee v Numero Uno Investments Ltd HC Auckland CIV-2009-404-2470,
1 May 2009 at [9].
I note also that in Rooney Earthmoving Ltd v McTague and Ors Associate Judge Matthews considered that the provisions of s 31.9 relating to advertising are mandatory.3
[14] In this case, the notice of originating application does not expressly ask for a liquidation order. It refers (at para 2.19) to “eventually” the appointment of a liquidator to investigate the actions of [Network] and its directors, and (at para
2.21.1) that it “intends to immediately begin the process to have Network placed in liquidation once it is restored to the Register”.
[15] In the absence of a sufficient formal application for a liquidation order, which has been served on the parties directed to be served, I do not consider this is a case for me to exercise any discretion I might have to apply r 1.5 of the High Court Rules and dispense with the requirements of pt 31 of the Rules, including r 31.9. I accordingly decline to make a liquidation order — an application for a liquidation order should be commenced in accordance with pt 31 of the High Court Rules.
Associate Judge Smith
Solicitors:
Duncan Cotterill, Wellington for the applicant
3 Rooney Earthmoving Ltd v McTague & Ors HC Christchurch CIV-2011-409-1519,
2 December 2011, at [16].
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