Transport Wholesale Limited v Bruce Hill Transport Limited HC PMN CIV 2007-454-211

[2008] NZHC 2415

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CIV 2008-454-211

IN THE MATTER OF     the Companies Act 1993

BETWEEN  TRANSPORT WHOLESALE LIMITED Plaintiff

ANDBRUCE HILL TRANSPORT LIMITED Defendant

Hearing:         22 July 2008

Appearances: P. Drummond - Plaintiff

B. Pearse - Defendant

Judgment:      22 July 2008

ORAL JUDGMENT OF ASSOCIATE JUDGE D.I. GENDALL

Solicitors:           Kevin McDonald & Associates, Solicitors, DX BP66086, Takapuna

Fitzherbert Rowe, Lawyers, Private Bag 11016, Palmerston North

TRANSPORT WHOLESALE LIMITED V BRUCE HILL TRANSPORT LIMITED HC PMN CIV 2008-454-

211  22 July 2008

[1]      Before the Court is an application by the plaintiff to have the defendant company placed into liquidation.

[2]      No formal statement of defence or opposition to this application has been filed.   Notwithstanding this, Ms Pearse appeared before me today and notionally opposed the application to place the defendant company into liquidation.

[3]      Some background to this matter is relevant.  On 7 February 2008 a statutory demand was served upon the defendant by the plaintiff.  The statutory demand was served at the registered office of the defendant company which was the office of its accountants as I understand the position.

[4]      Although there was a tentative suggestion made when this matter was called yesterday that the statutory demand may not have been properly served, I reject this contention.   Particularly if, as confirmed, the statutory demand was served at the registered office of the company being an accountant’s office there can, in my view, be no suggestion of any problem arising from service where in contrast to the present situation, for example, a demand is served at the place of business of a trucking company and may therefore have gone astray.

[5]      The first call of this matter was on 26 May 2008.  That was before Associate Judge Christiansen.  He noted in a Minute on that date that the matter was adjourned to  21  July 2008  at  10.00  am  for  “a  proposal  for  payment  to  be  made  by  the defendant”.  Interestingly there was no issue raised at that stage of any dispute with regard to the debt claimed by the plaintiff.

[6]      The matter then came before this Court for consideration again yesterday, 21

July 2008.  Different counsel from that who had appeared at the 26 May 2008 call was instructed for the defendant and appeared.

[7]      There was some confusion yesterday as to whether this debt was in fact disputed and as to whether the counsel who then appeared could obtain firm instructions regarding this matter.

[8]      Yesterday, 21 July 2008 I issued a Minute which adjourned this proceeding until today, 22 July 2008 and indicated that this was quite likely to be  a final adjournment with no further adjournments considered.

[9]      When  the  matter  came  before  me  today,  Ms  Pearce  appeared  for  the defendant.   She indicated that the instructions she had were in relation to Matter

2008-454-428 which was an application by South Pacific Tyres NZ Ltd to place the defendant company into liquidation.  Her instructions apparently were that the debt in question in that proceeding which amounted to some $4,392.71 was disputed.

[10]     Ms Pearse confirmed that she had no instructions with respect to the debt claimed in the present proceedings 2008-454-211 by Transport Wholesale Limited.

[11]     Nor in response to my question did Ms. Pearse indicate that she had any instructions regarding the financial position or solvency of the defendant company.

[12]     This matter has a significant history.  As I have noted the statutory demand was first served on the defendant company on 7 February 2008 but no steps were taken at that point.  This is despite there being ample time from February of this year for some action to be taken by the defendant company.

[13]     In addition, counsel for the plaintiff today placed before the Court a letter dated 30 June 2008 written on behalf of the plaintiff to the then solicitors who were acting for the defendant company.  This clearly places on record the intention of the plaintiff to proceed to have the defendant company placed into liquidation if the full amount of the debt and costs (said to total $24,907.03) was not paid by yesterday, 21

July 2008.  As I understand the position this letter met with no response.

[14]     Today is effectively the third call of this matter.  As I have noted above, no statement of defence or opposition has been filed by the defendant company.   Ms Pearse for the defendant indicates that the debt owing in related proceedings by South Pacific Tyres NZ Limited is disputed but there is no question raised that the debt in the present proceeding owed to Transport Wholesale Limited is similarly disputed.

[15]     There is no evidence or indication of any kind before me as to the financial position of the defendant company.

[16]     Given the considerable time which has elapsed in this matter since original service of the statutory demand and what is really a complete lack of any effective action taken on behalf of the defendant company, there is no alternative to me but for an order placing the defendant company into liquidation to be made today.

[17]     That said the following orders are now made:

a)        The defendant company is placed into liquidation. b)  Grant Bruce Reynolds is appointed liquidator.

c)        Costs are awarded to the plaintiff on a Category 2B basis together with disbursements as fixed by the Registrar.

d)       This order is timed at 10.29 am today 22 July 2008.

‘Associate Judge D.I. Gendall’