THE COMMISSIONER OF INLAND REVENUE V LAMBTON MAGAZINES (1988) LIMITED HC WN CIV-2006-485-1207

THE COMMISSIONER OF INLAND REVENUE V LAMBTON MAGAZINES (1988) LIMITED HC WN CIV-2006-485-1207 21 November 2006IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV-2006-485-1207IN THE MATTER OF The Companies Act 1993 BETWEEN THE COMMISSIONER OF INLAND REVENUE Plaintiff AND LAMBTON MAGAZINES (1988) LIMITED Defendant Hearing: 21 November 2006 Appearances: P.H.B. Latimer and R.L. Roff for Plaintiff B.A. Gibson for Defendant R.J. Buchanan for Toops T. Lamb for Netlink Judgment: 21 November 2006ORAL JUDGMENT OF ASSOCIATE JUDGE D.I. GENDALL[1] The plaintiff seeks an order placing the defendant company into liquidation. The basis of that application is that the defendant is unable to pay its debts. A statutory demand was issued by the plaintiff and served upon the defendant on 3 May 2006. [2] No application was made by the defendant to set aside that statutory demand. [3] On 9 June 2006 the plaintiff filed a Statement of Claim and supporting documents seeking orders that the defendant company be placed into liquidation. [4] A Statement of Defence was filed by the defendant on 21 July 2006.[5] In subsequent appearances before this Court on behalf of the defendant, Mr Gibson indicated that valiant efforts were being made by the directors of the defendant company to make arrangements to sell personal assets and arrange finance to provide cash injections into the company. [6] It appeared that a substantial debt was owed to another creditor of the defendant, Toops Wholesale Limited. Indeed, a Notice of Appearance by Toops Wholesale Limited was filed. [7] It seems that some arrangements were made to secure a portion of the debt outstanding to Toops Wholesale Limited. [8] Notwithstanding this, however, it is clear that no arrangements to settle the debt outstanding to the plaintiff, or to provide any security for that debt, were able to be made. [9] The debt due to the plaintiff, according to the certificate filed by Mr Latimer on behalf of the plaintiff, now stands at $113,089.41. [10] In the last few days a Notice of Appearance in support of the liquidation application has been filed by Netlink Distribution Company Limited. This states that Netlink is a creditor of the defendant company for $28,061.97. [11] This matter was called before me yesterday, 20 November 2006. [12] I adjourned matters until today, 21 November 2006, to give the defendant company one last opportunity to make arrangements with its creditors to settle the debts in question or provide appropriate security. [13] Before me today Mr Gibson for the defendant indicated that the defendant had been unable to achieve that. Moreover, the directors of the defendant company upon further consideration of this matter had reached the final decision that the company was not in a position to continue. Accordingly, the opposition to the plaintiff's liquidation application was effectively withdrawn.[14] That said, I am satisfied this is an appropriate matter for an order placing the defendant company into liquidation to be made. The defendant company is clearly insolvent. [15] An order is now made placing the defendant company into liquidation. [16] Barry Phillip Jordan and David Stuart Vance are appointed liquidators. [17] An order is made approving the liquidators' remuneration in accordance with the affidavit of Barry Phillip Jordan filed herein dated 17 July 2006, subject to s284 Companies Act 1993. [18] Costs are awarded to the plaintiff and to Toops Wholesale Limited, as creditor in support, on a category 2B basis, together with disbursements as fixed by the Registrar. [19] Before me Mr Lamb, counsel appearing on instructions for Netlink Distribution Company Limited, sought costs for the appearances for that company. Mr Gibson for the defendant opposed any order of costs to Netlink Distribution Company Limited upon the basis that the Notice of Appearance in support was filed out of time. [20] I accept that that is the position. Netlink Distribution Company Limited is therefore not entitled to costs in this matter. There is to be no award of costs to that company. [21] This order is timed at 11.08am today, 21 November 2006. __________________________Associate Judge D.I. GendallSolicitors:Inland Revenue Department, Technical and Legal Support Group, Wellington for Plaintiff Chiu & Cain, Wellington for Defendant Terrace Legal, Wellington for Toops Craig Griffin & Lord, Auckland for Netlink