York Precision Plastics NZ Limited v Intercryll Design & Fabrication Limited HC Auckland CIV 2008-404-002617

[2008] NZHC 2592

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2008-404-002617

UNDER  the Companies Act 1993

IN THE MATTER OF     an application for putting company into liquidation by the Court

BETWEEN  YORK PRECISION PLASTICS NZ LIMITED

Plaintiff

ANDINTERCRYLL DESIGN & FABRICATION LIMITED Defendant

Counsel:         B Pamatatau for plaintiff

No appearance for defendant

Judgment:      24 September 2008

ORAL JUDGMENT OF ASSOCIATE JUDGE ABBOTT

Solicitors:

Alistaire Hall Lawyers, PO Box 6154, Manukau 2241

Copy to: Mr G Chapman, C/- Debt Recovery Group NZ Limited

2/166 Henderson Valley Road, Henderson, Waitakere 0612

YORK PRECISION PLASTICS NZ LIMITED V INTERCRYLL DESIGN & FABRICATION LIMITED HC AK CIV 2008-404-002617  24 September 2008

[1]      The  plaintiff  applies  for  an  order  placing  the  defendant  into  liquidation. Before I determine that application I must deal with a preliminary matter, namely whether the defendant is already in liquidation.

[2]      A search of the Companies Registrar shows that the defendant was placed into liquidation on 25 July 2008.   Mr Pamatatau submits, however, that that appointment is invalid.  He seeks a declaration to that effect, and to proceed with the plaintiff’s substantive application.

[3]      I have  before  me  a  copy of  a  search  of  the  Companies  Register  which confirms  that  the  defendant  was  placed  into  liquidation  on  25  July 2008.    Mr Pamatatau has also produced to me a search of the Companies Office’s website just undertaken which shows that the liquidator was appointed by a special resolution pursuant to s 241(2)(a) of the Companies Act 1993.   A Mr Gilbert Chapman was appointed liquidator.

[4]      Section 241AA provides:

241AA Restriction  on  appointment  of  liquidator  by  shareholders  or board after application filed for Court appointment

(1)       This  section  applies  if  an  application  has  been  filed  for  the appointment of a liquidator of a company by the Court under section

241(2)(c).

(2)      A liquidator of the company may only be appointed under section

241(2)(a) or (b) if the liquidator is appointed within 10 working days after service on the company of the application.

(3)If  a  liquidator  is  appointed  under  section  241(2)(a)  or  (b),  the creditor who filed the application referred to in subsection (1) may apply to the Court under section 283(4) for the review of his or her appointment as if the words “successor to a liquidator” in section

283(4) read “liquidator”.

(4)Subsection (2) does not apply once the application has been finally disposed of.

[5]      There is an affidavit on file from a process server that the defendant was served with the application for liquidation on 3 June 2008, at its registered office.  It is  clear  from  this  evidence  that  Mr  Chapman  was  not  appointed  within  the  10 working days required under s 241AA(2).

[6]      I  have  power  under  s  284(1)(g)  of  the  Companies  Act  1993  to  declare whether or not a liquidator has been validly appointed:  ACP Media Ltd v R V Motor Home World (2003) Ltd (HC AK CIV2008-404-1338, 11 July 2008, Associate Judge Doogue).

[7]      I am entitled to make such an order on application by a creditor, shareholder or other entitled person, with leave.  The plaintiff is clearly a creditor.  Mr Pamatatau makes oral application today for such an order.   The company and Mr Chapman have had notice of this hearing (Mr Chapman will or ought to have received the company’s records).  Mr Pamatatau also informs me from the bar that Mr Chapman has been informed that the plaintiff does not accept that he was validly appointed.

[8]      In all the circumstances I am satisfied that leave is appropriate, and an order under s 284 should be made today.  As much as anything else, I consider it important that there not be a lacuna in dealings by or with a clearly insolvent company.

[9]      I make an order under s 284(1)(g) of the Companies Act 1993 declaring that

Mr Chapman was not validly appointed.

[10]     I turn now to deal with the plaintiff’s substantive application for liquidation. The defendant was served on 12 March 2008 with a statutory demand under s 289 of the Companies Act 1993 under which the plaintiff sought payment of the sum of

$40,131.26.  The defendant has not met that demand, and is thereby presumed to be insolvent.  The defendant has not taken any steps to defend this application which, as I have said, was served on it on 3 June 2008.  The application was duly advertised in the New Zealand Gazette on 11 September 2008 and in the New Zealand Herald on

12 September 2008.

[11]     I am satisfied that the plaintiff is entitled to an order putting the defendant into liquidation.   Mr Pamatatau has handed up to me a consent to act by S M Lawrence and A J McCullagh, Chartered Accountants and Insolvency Practitioners of Auckland.

[12]     I  make  an  order  placing  the  defendant  into  liquidation.    Stephen  Mark

Lawrence and Anthony John McCullagh are appointed liquidators.

[13]     The defendant is to pay costs to the plaintiff on a 2B basis, together with disbursements as fixed by the Registrar.

[14]     These orders are made as 12:10pm today, 24 September 2008.

Associate Judge Abbott