W & W Construction 2010 Limited v Lanwood Industries Limited

[2012] NZHC 2939

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CIV-2012-483-340

2012] NZHC 2939

UNDER  the Companies Act 1993 and High Court

Rules 31.11 (and 7.53), 31.22

BETWEEN  W & W CONSTRUCTION 2010

LIMITED

Plaintiff Company

ANDLANWOOD INDUSTRIES LIMITED Defendant Company

Judgment:      7 November 2012

DECISON OF ASSOCIATE JUDGE D.I. GENDALL

Under r 11.5 of the High Court Rules I direct the Registrar to deliver this decision on

7 November 2012 at 12.15 pm.

Solicitors:           Treadwell Gordon, Solicitors, PO Box 4084, Wanganui

W & W CONSTRUCTION 2010 LIMITED V LANWOOD INDUSTRIES LIMITED HC WANG CIV-2012-

483-340 [7 November 2012]

[1]      On 6 November 2012 the plaintiff company W & W Construction 2010

Limited (the plaintiff company) filed a Without Notice Interlocutory Application for an Interim Injunction Restraining Publication and a Stay of Liquidation Proceedings which had been issued against it by Lanwood Industries Limited (the defendant company).

[2]      Those liquidation proceedings as I understand it were issued in the Wanganui Court by Lanwood Industries Limited under proceeding CIV-2012-483-340 by a statement of claim dated 1 November 2012.

[3]      That statement of claim indicated that on 8 October 2012 the plaintiff in that other proceeding Lanwood Industries Limited had served upon the defendant W & W  Construction  2010  Limited  a  statutory  demand  under  the  Companies  Act requiring payment of the sum of $91,927.70.  The statement of claim said that W & W Construction 2010 Limited had failed to comply with that statutory demand and hence the liquidation proceedings were issued.

[4]      This  Court  has  the  power  to  stay  liquidation  proceedings  and  restrain advertising in terms of r 31.11 High Court Rules which provides:

31.11    Power to stay liquidation proceedings

(1)       If an application for putting a company into liquidation is made under rule 31.3, the defendant company, or, with the leave of the court, any creditor or shareholder of that company or the Registrar of Companies, may, within 5 working days after the date of the service of the statement of claim on the defendant company, apply to the court—

(a)       for an order restraining publication of an advertisement required by rule 31.9       or    any    other    information relating to that statement of claim; and

(b)       for an order staying any further proceedings in relation to the liquidation.

(2)       The court must treat an application under sub-clause (1) as if it were an application for an interim injunction and, if it makes the order sought, it may do so on whatever terms the court thinks just.

(3)        The inherent jurisdiction of the court is not limited by this rule.

[5]      Any such application is to be made on notice.

[6]      The present application before me by W & W Construction 2010 Limited appears to be made without notice.  In addition, r 31.11 requires any application for a stay and to restrain advertising to be made within 5 working days after the date of service of the statement of claim on a defendant company.  No details as to service of the statement of claim have been provided to the Court.

[7]      I direct therefore that any application which is to be pursued by W & W Construction 2010 Limited for a stay of the liquidation proceedings and to restrain publication of the required advertisements is to be made on notice.

[8]      And, simply to preserve the position in the meantime, if in fact the plaintiff Lanwood Industries Limited has not as yet advertised this liquidation application as required by r 31.9 High Court Rules, an interim order is now made restraining publication of that advertisement until further order of this Court is made.

[9]      There is some urgency required in this matter.  In this regard, the Registrar of the High Court at Wanganui is directed to liaise with counsel for the parties to arrange an urgent directions telephone conference with counsel to discuss a way forward and hopefully to achieve a speedy resolution of this matter.   I say this bearing  in  mind  that  I understand  the  $91,227.00  disputed  funds  are  held  in  a solicitors’ trust account for W & W Construction (2010) Limited at present.

‘Associate Judge D.I. Gendall’