THE COMMISSIONER OF INLAND REVENUE AND THE REGISTRAR OF COMPANIES

[2005] NZHC 1849

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2004-404-7293

UNDER

IN THE MATTER OF

The Companies Act 1993

a restoration of a Company to the Register of Companies

BETWEEN

THE COMMISSIONER OF INLAND REVENUE

Plaintiff

AND

THE REGISTRAR OF COMPANIES

Defendant

Hearing:

14 March 2005

Appearances: N Malarao for the Plaintiff

No appearance for the Defendant Judgment:    15 March 2005

JUDGMENT OF SIMON FRANCE J

This judgment was delivered by Justice Simon France on 15 March 2005 at 4:00 p.m. pursuant to r540(4) of the High Court Rules 1985

Solicitors:

Crown Solicitors, Auckland

INLAND REVENUE V REGISTRAR OF COMPANIES HC AK CIV 2004-404-7293 [15 March 2005]

[1]        The Commissioner of Inland Revenue seeks orders under s329 of the Companies Act to restore a company, namely McKenzie Westmark Limited to the Register of Companies. The company was removed on 27 January 2000.

[2]        The Defendant through correspondence with the Crown Law Office has indicated that it abides the decision. Service has been effected on the former directors of the relevant company. Service of the Notice of Proceedings and Statement of Claim was made on 17 January 2005; service of the Application for Default Judgment together with accompanying affidavits was similarly effected on 24 February 2005.

[3]        Mr Malarao for the Commissioner has helpfully referred me to a similar application  heard  by  Cooper  J  in  December   of   last   year   (same   parties,   CIV 2004-404-6370, 13 December 2004).

[4]        The context for the present application is that the Commissioner wishes to reassess the income tax payable by the company in the tax year ending 31 March 1999. The desired reassessment has come about because the Commissioner only became aware some years after deregistration that the tax liability of the company was affected, in the Commissioner’s view, by the company’s link to the so-called Trinity scheme. At the time of deregistration this link was not known to the Commissioner.

[5]        The application is made under s329 of the Companies Act 1993. As before Cooper J, the issue arose as to whether the Commissioner can be described as a creditor in terms of s329(1)(a)(iv). If not, the Commissioner requests leave pursuant to s329(2) and presumably claims that it is just and equitable to restore the company to the register pursuant to s329(1)(d). As with Cooper J, I accept either the Commissioner is a creditor within the meaning of s329, or alternatively, it is appropriate for the Court to give leave.

[6]        There are on file the necessary affidavits of service, and the appropriate affidavit confirming the content of the summary of facts. There is no suggestion on

the evidence that the rights of third parties are affected by granting the application sought. Accordingly, I direct that the company be restored to the Register of Companies.

[7]        Unlike the proceedings before Cooper J, there are no ancillary applications before me concerning returning of the company to its original position.

Simon France J