ALLIED FARMERS INVESTMENTS LTD V ELGIN INVESTMENTS LTD (IN RECEIVERSHIP) HC AK CIV-2010-404-002247

ALLIED FARMERS INVESTMENTS LTD V ELGIN INVESTMENTS LTD (IN RECEIVERSHIP) HC AK CIV-2010-404-002247 23 August 2010IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV-2010-404-002247IN THE MATTER OF the Companies Act 1993 BETWEEN ALLIED FARMERS INVESTMENTS LTD Plaintiff AND ELGIN INVESTMENTS LTD (IN RECEIVERSHIP) Defendant Hearing: 23 August 2010 Appearances: N Gedye for Plaintiff No appearance for Defendant J Ridling for Commissioner of Inland Revenue Judgment: 23 August 2010ORAL JUDGMENT OF ASSOCIATE JUDGE BELLSolicitors/Counsel: Minter Ellison RuddWatts, PO Box 3798, Shortland Street, Auckland Cousins & Associates, PO Box 22115, Christchurch N Gedye, PO Box 2097, Shortland Street, Auckland[1] This is an application by Allied Farmers Investments Ltd for Elgin Investments Ltd (In Receivership) to be put into liquidation. Elgin Investments Ltd (In Receivership) is a David Henderson company. That is the Christchurch David Henderson, not the Auckland David Henderson. Most of the Christchurch David Henderson litigation has been conducted in the High Courts in the South Island. This case is in the Auckland High Court because Elgin Investments Ltd has been placed in receivership and the registered office is now at the offices of the receivers, who are in Auckland. [2] The proceeding did not get off to a happy start because the original statement of claim was inadequately pleaded. The statement of claim did not contain any reference to the plaintiff and there is no pleading that the plaintiff is a creditor of Elgin Investments Ltd. [3] Only certain classes of people are entitled to apply to the Court for an order that a company be put into liquidation. They are identified in s 241(2)(c) of the Companies Act 1993. They include a creditor, but there must be some pleading that the plaintiff is a creditor and that person ought to establish what the amount of the debt is they are saying is owed to them. Those are completely lacking. [4] They also got off to a bad start with the service of a statutory demand. A statutory demand was served at an office in Christchurch, whereas, as I have indicated, the registered office of the company is in fact in Auckland. That statutory demand cannot be relied on to prove the indebtedness of the company. [5] As it is, there is evidence that the company is indebted to the plaintiff. That appears from the receiver's report. It also appears from orders for costs that have been made and in addition a summary judgment was given in the High Court Christchurch on 20 July 2010 in favour of the plaintiff against Elgin Investments Ltd. [6] It appears from the reports of the receivers, in particular the report dated 16 February 2010, that the company is insolvent and that there is no likelihood of any payment to unsecured or preferential creditors. Mr Gedye says that AlliedFarmers Investments Ltd is itself unsecured, even though it has a second mortgage over the property. The property in question is the Sydenham Central Shopping Centre in Colombo Street, Christchurch. There is also evidence from another creditor, Melray Electrical Ltd, which has an unsatisfied judgment. [7] Some of the deficiencies in the plaintiff's pleading were remedied on 17 August 2010 when Lang J allowed the plaintiff to amend its statement of claim. With that statement of claim the case is now in order. Orders can be made for the company to be put into liquidation. The plaintiff has not provided a certificate as to the debt not being paid. The order made now is made on Mr Gedye's undertaking that his instructing solicitors will provide such a certificate as soon as possible. [8] There is an order that Elgin Investments Ltd (In Receivership) is put into liquidation. The time of the order is 10:12 am. The Official Assignee is appointed liquidator. There is an order for costs in favour of the plaintiff in the sum of $1,880, plus disbursements fixed by the Registrar. The Commissioner of Inland Revenue appears as a supporting creditor. He is entitled to costs in the sum of $1,120, plus disbursements of $90. __________________________ R M Bell Associate Judge