Uhd Wairarapa Limited v Tomlinson & Carruthers Surveyors Limited HC Masterton Civ-2010-435-182

[2011] NZHC 3

IN THE HIGH COURT OF NEW ZEALAND MASTERTON REGISTRY

CIV-2010-435-182

UNDER  Rule 19.2(c) Part 19 High Court Rules

IN THE MATTER OF     section 290 Companies Act 1993

AND

IN THE MATTER OF     a Statutory Demand dated 13 August 2010 and served on 20 August 2010

BETWEEN  UHD WAIRARAPA LIMITED Plaintiff

ANDTOMLINSON & CARRUTHERS SURVEYORS LIMITED Defendant

Judgment:      26 January 2011

DECISION OF ASSOCIATE JUDGE D.I. GENDALL

Solicitors:           Smith & Partners, Solicitors, PO Box 104065, Lincoln North

Brandons, Solicitors, PO Box 36, Wellington

UHD WAIRARAPA LIMITED V TOMLINSON & CARRUTHERS SURVEYORS LIMITED HC MAS CIV-

2010-435-182  26 January 2011

[1]      On  3  September  2010  the  plaintiff  filed  in  this  Court  an  originating application for an order to set-aside a statutory demand which had been issued against it by the defendant.

[2]      That statutory demand which was dated 13 August 2010 had sought the sum of $379,132.64 for surveying services claimed to be rendered by the defendant to the plaintiff with respect to a subdivision at Waingawa, Masterton.

[3]      The plaintiff’s application to set-aside the statutory demand was opposed by the defendant and a notice of opposition filed on 7 October 2010.

[4]      On 11 October 2010 I set down for a half day hearing at 10.00 am on 28

January 2011 the plaintiff’s application to set-aside the statutory demand.

[5]      It now appears that the plaintiff company passed the necessary resolutions to place itself into voluntary liquidation on 21 December 2010.  A Mr Lloyd Hayward was appointed liquidator.

[6]      On 22 December 2010 Mr Corry, counsel for the plaintiff company indicated to the Court that the plaintiff’s application to set-aside the statutory demand was unlikely to  proceed.    Then,  on  11  January 2011,  the  liquidator  of  the  plaintiff company, Mr Hayward confirmed to the Court that the application to set-aside the statutory demand was to be discontinued.  As the liquidator has now confirmed that the plaintiff company is not to proceed with this application, it is appropriate that the following directions are now made:

(a)      Leave is granted to the plaintiff company now in liquidation to discontinue its present application to set-aside the statutory demand.

(b)The  hearing  allocated  for  this  application  on  28  January 2011  is vacated – appearances excused.

(c)Costs are reserved.  If costs are in issue between the parties then they may file memoranda (sequentially) which are to be referred to me and in the absence of either party indicating they wish to be heard on the

issue I will decide the question of costs based on the material before the Court.

‘Associate Judge D.I. Gendall’