The Commissioner of Inland Revenus v Gibson Security Limited HC Wellington CIV 2008-485-1379

[2008] NZHC 2495

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2008-485-1379

IN THE MATTER OF     the Companies Act 1993

BETWEEN  THE COMMISSIONER OF INLAND REVENUE

Plaintiff

ANDGIBSON SECURITY LIMITED Defendant

Hearing:         12 August 2008

Appearances: A.J. York - Plaintiff

Judgment:      12 August 2008

ORAL JUDGMENT OF ASSOCIATE JUDGE D.I. GENDALL

Solicitors:           A.J. York, Legal & Technical Services, IRD, PO Box 1462, Wellington

THE COMMISSIONER OF INLAND REVENUE V GIBSON SECURITY LIMITED HC WN CIV 2008-485-

1379  12 August 2008

[1]      The present liquidation proceeding was called in the list yesterday, 11 August

2008.   Mr Latimer appeared for the plaintiff. There was no  appearance for the defendant company.   A certificate of non-payment of the $175,559.68 debt was provided.

[2]      At 10.45 am yesterday, 11  August 2008 an order was made placing the defendant company into liquidation.  John Howard Ross Fisk and Craig Alexander Ross Sanson were appointed liquidators.

[3]      It  now  appears  from  correspondence  received  late  yesterday  from  the plaintiff, Commissioner of Inland Revenue, that regrettably a matter which should have been before the Court yesterday, 11 August 2008 was not.

[4]      It seems that on Friday last, 8 August 2008  an  officer  of the  defendant company  made  contact  with  the  Inland  Revenue  Department  and  offered  a favourable settlement proposal.  An agreement was apparently reached at that stage between the Commissioner’s solicitor and the defendant company to adjourn this matter for a period of 6 weeks when it was to be called on 11 August 2008 so that this payment could be arranged.

[5]     Regrettably, through an administrative error, the plaintiff Commissioner proceeded yesterday, 11 August 2008 and the order placing the defendant company into liquidation was made.

[6]      The  plaintiff  Commissioner  now  seeks  leave  to  recall  this  order  and  a direction adjourning this matter for a period of approximately 6 weeks in order that settlement can be achieved.

[7]      It is clear from the decision in Bridon NZ Ltd v Tent World Limited [1992] 3

NZLR 725 that the Court has power to recall a decision wrongly made as an alternative mode of rescinding a winding up order where the Court is satisfied that such order should never have been made.   This is pursuant to r. 542 High Court

Rules.   Also, the Court’s power to terminate a liquidation on just and equitable grounds under s. 250 Companies Act 1993 has relevance here.

[8]      In addition the Court has an inherent jurisdiction to rectify an error which has occurred to otherwise prevent a miscarriage of justice in matters such as the present.

[9]      The situation in the present case is, in many respects, not dissimilar to that which prevailed in Bridon NZ Ltd v Tent World Limited.   Here it seems that a settlement proposal had been agreed to between the parties prior to the hearing of this matter on 11 August 2008 but that this was overlooked on 11 August 2008 and not referred to the Court.

[10]     That said, in my view, this is an appropriate case for the Court to recall the judgment and order made yesterday, 11 August 2008.

[11]     An order is now made recalling that judgment and the order placing the defendant company into liquidation dated 11 August 2008.

[12]     In its place this proceeding is adjourned to a call in the list at 10.00 am on 6

October 2008.

[13]     Costs are reserved.

[14]     If it may be relevant this order is timed at 10.31 am today, 12 August 2008.

‘Associate Judge D.I. Gendall’