ALPHA CARS WHOLESALE (2018) LIMITED v AL-CHALABI [2019] NZHC 1556

ALPHA CARS WHOLESALE (2018) LIMITED v AL-CHALABI [2019] NZHC 1556 [3 July 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2018-404-002841[2019] NZHC 1556IN THE MATTER of the Companies Act 1993BETWEEN ALPHA CARS WHOLESALE (2018)LIMITEDPlaintiffAND SHAMSALASEEL AL-CHALABIRespondentHearing: 3 July 2019Appearances: R Sami (granted leave to withdraw) for the PlaintiffA M Swan for the RespondentJudgment: 3 July 2019Reasons: 4 July 2019JUDGMENT OF WOOLFORD JCounsel: A M Swan, Barrister, AucklandCopy to: R Sami, Auckland[1] In this proceeding, Alpha Cars Wholesale (2018) Limited (Alpha Cars) hasfiled a notice of originating application to set aside a statutory demand issued pursuantto s 289 of the Companies Act 1993. The proceeding has a substantive fixture at 10.00am on 12 July 2019.[2] By minute of 3 May 2019, Associate Judge Smith directed the applicant to fileand serve any reply affidavits together with written submissions in support of theapplication by 28 June 2019. The applicant has not done so.[3] On 6 June 2019, counsel for the applicant, Mr Sami, sought leave to withdrawas counsel. The proceeding was adjourned to allow Mr Khan as director of theapplicant an opportunity to instruct another solicitor to appear on behalf of theapplicant. He has not done so. Instead, he emailed the High Court at 8.48 am on 3July 2019, as follows:I refer to the MEMORANDUM OF (FORMER) COUNSEL dated 2 July 2019("THE SAID MEMORANDUM") for call over at 10 AM today.I must make it very clear, with respect to all concerned that I am not a directorof the Applicant Company since March 2019. The office of the Said FormerCounsel was informed of that.I have been only contact person for the Said Applicant Company and itsOfficers who are overseas at present.I do trust I have clarified my position.Kind RegardsM.S..Sahu Khan[4] In light of the fact that Mr Khan has not instructed another solicitor to appearon behalf of the applicant, I granted Mr Sami leave to withdraw. Before doing so,however, he provided me with a copy of a printout from the New Zealand CompaniesOffice Register, timed and dated at 9.22 am on 3 July 2019, which indicates that thesole director of Alpha Cars is Mr Muhammad Shamsud-dean Sahu Khan. TheCompanies Office records calls into question Mr Khan's assertion that he has not beena director of the applicant since March 2019.[5] Ms Al-Chalabi had served a statutory demand on Alpha Cars on the strength ofan order of the Disputes Tribunal dated 2 March 2018 that Alpha Cars was to pay her$11,149.50 in respect of a car purchased by her from Alpha Cars, which was not safeto drive.[6] Alpha Cars filed the originating application to set aside the statutory demandon the basis that it had applied for a re-hearing of the Disputes Tribunal claim on thebasis that it had not received the original Disputes Tribunal application. In an affidavitdated 31 May 2019, Mr Navin Dutt Sharma, who states that he was authorised byAlpha Cars to make the affidavit on its behalf, stated that on 29 March 2018, thecompany had received a letter from the District Court confirming that, as regards tothe application for re-hearing, "You will be advised of the referee's decision in duecourse". Accordingly, Mr Sharma maintained that there was a substantial issue to bedecided and that, therefore, the statutory demand should be set aside.[7] Mr Sharma's affidavit was affirmed on 31 May 2019. What he omitted toadvise the Court was that by decision dated over year earlier, on 17 May 2018, theDisputes Tribunal had declined the application by Alpha Cars for a re-hearing. TheDisputes Tribunal had recorded that its original order of 2 March 2018 was reinstatedand could be enforced immediately.[8] In those circumstances, I dismissed the originating application to set aside thestatutory demand under r 15.2 of the High Court Rules, specifically because theapplicant had failed to prosecute its proceeding to trial and judgment by failing tocomply with Court directions. I am of the view that the applicant has been guilty ofan inordinate delay, that such delay is inexcusable and that it has seriously prejudicedthe respondent.[9] The fixture for 15 July 2019 is accordingly vacated. The proceeding is at anend.________________________________Woolford J