ABURN AND ANOR V TERAWHITI FARMING CO LIMITED AND ORS HC AK CIV-2006-404-007541

ABURN AND ANOR V TERAWHITI FARMING CO LIMITED AND ORS HC AK CIV-2006-404-007541

Leave under r458D(1)(e) was granted because the disputed entry in the company's register resulted from an apparent transcription mistake producing a prohibited trust entry rather than naming personal representatives; the issue is procedural, straightforward to determine under s91, and in the interests of justice to resolve promptly by originating application under Part 4A rather than full Part 4 procedures.

Citation
openlaw-b26374cf_6bf6_4b19_baac_57fa1c1254da.pdf
Parties
First Applicant: John Edward Aburn; First Applicant: Donald Leroy Francis; First Applicant: Joanna Gordon Grace; Second Applicant: Alison Joan Cook; Second Applicant: Donald Leroy Francis; First Respondent: Terawhiti Farming Co. Limited; Second Respondent: Alastair Charles Wright; Third Respondent: Paul James Laing; Fourth Respondent: William Russell Grace
Court
High Court
Jurisdiction
New Zealand
Judgment Date
20 February 2007
Procedural Posture
Rectification of Share Register Under S91 Companies Act 1993 / Application for Leave Under R458 D(1)(e) to Commence by Originating Application (part 4 A)
Outcome
Application for leave granted
Legal Topics
Share Register Rectification, Originating Application Under Part 4 a, Directors' Duties to Maintain Register, Trust Entries on Share Register
Company Law Civil Procedure Share Register Rectification Originating Application Under Part 4 a Directors' Duties to Maintain Register Trust Entries on Share Register

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Parties

John Edward Aburn

First Applicant

Donald Leroy Francis

First Applicant

Joanna Gordon Grace

First Applicant

Alison Joan Cook

Second Applicant

Donald Leroy Francis

Second Applicant

Terawhiti Farming Co. Limited

First Respondent

Alastair Charles Wright

Second Respondent

Paul James Laing

Third Respondent

William Russell Grace

Fourth Respondent

Procedural Posture

Rectification of Share Register Under S91 Companies Act 1993 / Application for Leave Under R458 D(1)(e) to Commence by Originating Application (part 4 A)

Legal Issues

  1. 1 Whether leave should be granted under r458D(1)(e) to commence a s91 rectification application by Part 4A originating application
  2. 2 Whether the rectification claim is a simple procedural matter suitable for Part 4A or whether it is intertwined with broader substantive disputes requiring Part 4 procedure

Ratio Decidendi

Leave under r458D(1)(e) was granted because the disputed entry in the company's register resulted from an apparent transcription mistake producing a prohibited trust entry rather than naming personal representatives; the issue is procedural, straightforward to determine under s91, and in the interests of justice to resolve promptly by originating application under Part 4A rather than full Part 4 procedures.

Court Disposition

Application for leave granted

Orders

  • Leave granted to commence the s91 Companies Act 1993 rectification proceeding by originating application under Part 4A High Court Rules pursuant to r458D(1)(e)
  • Costs awarded to the first and second applicants on a category 2B basis with disbursements as fixed by the Registrar