THE COMMISSIONER OF INLAND REVENUE V JEMA TRUSTEES LIMITED HC AK CIV-2011-404-3134
The Court directed that the shareholder-appointed liquidator, Stuart Douglas Robertson, must file an affidavit within 21 days providing evidence from the company's records about the company's solvency immediately before the 21 June 2011 shareholders' resolution and must attend Court at 10:45 on 9 September 2011; the...
Source-derived case information.
- Citation
- openlaw-48a606f4_b095_4611_9bf7_a6645b18821c.pdf
- Parties
- Plaintiff: Commissioner of Inland Revenue; Defendant: JEMA Trustees Limited
- Court
- High Court
- Jurisdiction
- New Zealand
- Judgment Date
- 15 July 2011
- Procedural Posture
- Companies Act 1993 Application Concerning Liquidation / Directions Hearing / Interlocutory
- Outcome
- Proceeding adjourned; court issued interlocutory directions requiring an affidavit and attendance by the shareholder-appointed liquidator; matter listed for 9 September 2011.
- Legal Topics
- Liquidation, Solvency, Shareholder Resolution Validity, Appointment of Liquidator, Court Directions
Source-derived case record
Summary, issues, holding and outcome
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Parties
Commissioner of Inland Revenue
Plaintiff
JEMA Trustees Limited
Defendant
Procedural Posture
Companies Act 1993 Application Concerning Liquidation / Directions Hearing / Interlocutory
Legal Issues
- 1 Whether the shareholder resolution appointing a liquidator was valid given the company's likely insolvency on 21 June 2011
- 2 Whether the Court should appoint the Commissioner's liquidator instead of the shareholder-appointed liquidator
- 3 What evidential material is required to determine the company's solvency immediately before the resolution
Ratio Decidendi
The Court directed that the shareholder-appointed liquidator, Stuart Douglas Robertson, must file an affidavit within 21 days providing evidence from the company's records about the company's solvency immediately before the 21 June 2011 shareholders' resolution and must attend Court at 10:45 on 9 September 2011; the proceeding was adjourned to that date to enable determination based on that evidence.
Court Disposition
Proceeding adjourned; court issued interlocutory directions requiring an affidavit and attendance by the shareholder-appointed liquidator; matter listed for 9 September 2011.
Orders
- Liquidator Stuart Douglas Robertson is to file an affidavit within 21 days giving evidence from the company's records bearing on the company's solvency immediately before the shareholders' resolution of 21 June 2011.
- The liquidator Stuart Douglas Robertson is to appear at the next call of the matter at 10:45 on 9 September 2011.
Full Case Text
Judgment text and source record
1 paragraphs
THE COMMISSIONER OF INLAND REVENUE V JEMA TRUSTEES LIMITED HC AK CIV-2011-404-3134 15 July 2011IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2011-404-3134UNDER the Companies Act 1993BETWEEN THE COMMISSIONER OF INLANDREVENUEPlaintiffAND JEMA TRUSTEES LIMITEDDefendantHearing: 15 July 2011Appearances: Ms S Law for CommissionerJudgment: 15 July 2011ORAL JUDGMENT OF ASSOCIATE JUDGE J P DOOGESolicitors:Inland Revenue Department, Manukau City – by email: susan.law@ird.govt.nz[1] A liquidator was appointed by shareholder resolution in respect of the defendant on 21 June 2011. The Commissioner does not accept that the resolution was properly passed because the company was unlikely to have been solvent at the time. For that reason the Commissioner has brought proceedings for the appointment of its own liquidator.[2] In order to resolve this matter it will be necessary to hear from the shareholder/appointed liquidator. I direct that the liquidator, Stuart Douglas Robertson is to file an affidavit in these proceedings within 21 days giving evidence of such information as is in the company's records which bear upon the question of the company's solvency immediately before the date of the shareholders resolution,21 June 2011. I also direct that the liquidator is to appear at the next call of this matter. It may be that if satisfactory information is provided in the affidavit which Ihave referred to above that it will be possible to excuse Mr Robertson's attendanceon 9 September, but in the meantime he has an obligation to come before the Court at 10.45 on 9 September 2011. If there are further discussions between the Commissioner and Mr Robertson which mean that his attendance at Court would not be required then the Commissioner is to file a memorandum of 9 September advising the Court that it does not see any need for the liquidator to appear and, sending a copy of that information to Mr Robertson.The proceeding is adjourned to 10.45 a.m on 9 September 2011.__________________________ J P DoogueAssociate Judge