COMMISSIONER OF INLAND REVENUE v REGISTRAR OF COMPANIES [2018] NZHC 7

COMMISSIONER OF INLAND REVENUE v REGISTRAR OF COMPANIES [2018] NZHC 7 [18 January2018]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECIV-2017-419-000370[2018] NZHC 7UNDER the Companies Act 1993 and Part 18 of theHigh Court RulesIN THE MATTER OF an application under section 329 of theCompanies Act 1993 for an order restoring acompany to the New Zealand companiesregisterBETWEEN THE COMMISSIONER OFINLAND REVENUEPlaintiffAND REGISTRAR OF COMPANIESDefendantHearing: [On the Papers]Counsel: C D Walmsley for the PlaintiffJudgment: 18 January 2018JUDGMENT OF EDWARDS JThis judgment was delivered by Justice Edwardson 18 January 2018 at 11.30 AM, pursuant tor 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Solicitors: Inland Revenue Department (Legal and Technical Services), Hamilton[1] The Commissioner of Inland Revenue applies for an order that64 Victoria Street Limited (company) be restored to the Register pursuant to s 329 ofthe Companies Act 1993. It also seeks a direction that the money held by thePublic Trust on behalf of the company be paid to the Commissioner to the credit ofthe company.Background[2] The company was removed from the Companies Office Register on9 September 2016. The Registrar's notice of removal stated that the Registrar hadreasonable grounds to believe that the company was not carrying on business and therewas no proper reason for it to continue in existence.[3] On or about 22 December 2016, the Commissioner paid the Public Trust thesum of $76,902.34, being the amount of tax that the plaintiff believed the companyhad paid in excess of its liabilities. The payment was made to the Public Trust on thebasis that the company's property vested in the Crown after the company was removedfrom the Register.[4] On 28 March 2017, the company's tax agent filed the company's income taxreturn for the tax year ended 31 March 2016. The tax agent asked the Public Trust torefund the monies it held on behalf of the company to the Commissioner on the basisthat this amount had previously been paid to cover the income tax of the company forthe tax year ended 31 March 2016. The Public Trust advised the tax agent that themoney could not be returned as requested.[5] On 24 April 2017, the Commissioner issued a tax return acknowledgementnotice recording that the company had $77,346.35 in tax to pay (inclusive of use ofmoney interest) for the tax year ended 31 March 2016. The Commissioner seeks therestoration of the company to the Register and a direction that the monies held by thePublic Trust to put the company in the position it would have been in had it not beenremoved from the New Zealand Register.[6] The parties who may be affected, or have an interest in the proceeding have allbeen served. These are: the Registrar of Companies, the Public Trust, the formerdirectors of the company, and representatives of the interests of the shareholders in thecompany.[7] Each of these parties has given their written consent to the making of the orderssought. On that basis, counsel for the plaintiff seeks a without notice order to be madedispensing with service under r 18.7 of the High Court Rules. The Commissioner alsoseeks an order that the relief sought in the plaintiff's statement of claim should begranted by consent.Decision[8] I accept that there is little purpose in requiring the proceedings to be served,given that all interested parties have now received copies of the proceedings and giventheir written consent to the orders sought. Accordingly, I make an order dispensingwith service of the proceeding.[9] Furthermore, I consider it is just and equitable to restore the company to theNew Zealand Register. The restoration will allow the monies paid to the Public Trustafter the company was removed from the Register to be refunded to the Commissionerto the credit of the company.[10] Finally, I am satisfied that a direction to the Public Trust to pay the monies heldin its account will allow the company, the Commissioner of Inland Revenue and thePublic Trust to be placed in as nearly as possible position as if the company had notbeen removed from the New Zealand Register.Result[11] I make the following orders by consent:(a) Service of the proceedings is not required;(b) 64 Victoria Street Limited shall be restored to the Companies Officeregister pursuant to s 329 of the Companies Act 1993; and(c) The Public Trust shall pay the monies held on behalf of64 Victoria Street Limited to the Commissioner of Inland Revenue tothe credit of 64 Victoria Street Limited.___________________Edwards J