Yorke v De Goey

[2013] NZHC 1015

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV 2013-488-00261 [2013] NZHC 1015

BETWEEN  MARGARET JOY YORKE Applicant

ANDJEFFREY JOHN DE GOEY Respondent

Hearing:         (on the papers)

Counsel:         V McGoldrick for Applicant

No appearance by, or on behalf of Respondent

Judgment:      8 May 2013

JUDGMENT OF HEATH J

This judgment was delivered by me on 8 May 2013 at 4.00pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:

Henderson Reeves Connell Rishworth, PO Box 11, Whangarei

YORKE V DE GOEY HC WHA CIV 2013-488-00261 [8 May 2013]

[1]      Ms Yorke seeks an order that a property situated at 52 Walker Crescent, Whangarei be vested in her.  She applies as a person who would have been entitled to receive a distribution of the proceeds of sale of the property, for the purposes of s 324(4) of the Companies Act 1993.[1]

[1] See para [4] above.

[2]      The company that previously owned the property, Huto Enterprises Ltd, was struck off the Register of Companies on 15 February 2011.  However, it remains the registered proprietor of the land.  A sale is to be completed on 5 June 2013.

[3]      Following proceedings between the two shareholders, Ms Yorke and Mr de Goey in the Family Court at Whangarei (following their separation) an order has been made vesting the land in the name of Ms Yorke.   That was done without knowledge that the company had been struck off the register.   The fact that the company had been struck off, and the legal consequences, were not appreciated when the agreement for sale and purchase was entered into.

[4]      Section 324(1) of the Companies Act makes  it clear that assets that are owned by a company before they are struck off will, in the absence of an order under s 324(4), be vested in the Crown.  Section 324(1) and (4) provide:

324  Property of company removed from register

(1)       Property that, immediately before the removal of a company from the New Zealand register, had not been distributed or disclaimed, vests in the Crown with effect from the removal of the company from the register.

...

(4)       Where property is vested in the Crown under this section, a person who would have been entitled to receive all or part of the property, or payment from the proceeds of its realisation, if it had been in the hands of the company immediately before the removal of the company from the New Zealand register, or any other person claiming through that person, may apply to the Court for an order—

(a)      Vesting all or part of the property in that person; or

(b)      For payment to that person by the Crown of compensation of an amount not greater than the value of the property.

[5]      The application is made by Ms Yorke, on her assurance that, after payment of conveyancing and sale costs, the net proceeds of sale will be paid to ANZ Bank to clear its mortgage over the property.  The other shareholder in Huto Enterprises Ltd, Mr de Goey, consents to the application.  Consent is also given by the Treasury, on behalf of the Crown.  That is required because of the prior vesting of the land in the Crown as bona vacantia.  ANZ Bank consents as long as its mortgage is paid off from the proceeds of sale.

[6]      I am satisfied that there are no other parties who need be given notice of the application.  The fact that an order vesting the property in Ms Yorke will mirror the order made in the Family Court[2] also tells in favour of granting the application.

[2] That order has been rendered ineffective by operation of s 324(1) Companies Act 1993.

[7]      I make an order under s 324(4) of the Companies Act 1993 vesting the land at 52 Walker Crescent, Whangarei (more particularly described in Certificate of Title NZ 844/187) in Margaret Joy Yorke.   That order is made on condition that, after payment of costs of sale, the net balance of the proceeds of sale of the property shall be paid to ANZ Bank in clearance of its mortgage over the land.

[8]      In case any difficulties arise in relation to the registration of the order vesting the land in Ms Yorke, leave to apply is reserved.  Any application should be referred to the Duty Judge in Auckland, in the absence of any Judge sitting in Whangarei at that time.

[9]      Given the order made in the Family Court, I see no need for an order as to costs to be made.  Leave to apply is reserved in case there are any matters I have

overlooked, in that regard.

P R Heath J