COMMISSIONER OF INLAND REVENUE V T J POWER LTD HC AK CIV-2004-404-3357

COMMISSIONER OF INLAND REVENUE V T J POWER LTD HC AK CIV-2004-404-3357 20 February 2006IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV-2004-404-3357IN THE MATTER OF The Companies Act 1993 BETWEEN COMMISSIONER OF INLAND REVENUE Plaintiff AND T J POWER LIMITED Defendant Hearing: 25 October 2005 Appearances: C K Wood for plaintiff R Warburton for defendant Judgment: 20 February 2006 at 11.30amJUDGMENT OF ASSOCIATE JUDGE ABBOTTSolicitors: Crown Solicitor, P O Box 2213, Auckland Mr R J Warburton, P O Box 127, Auckland[1] T J Power Limited has applied for a stay of this liquidation proceeding and further restraint of advertising. Interim orders for stay and restraint have been in effect for some time. [2] The application to place the defendant in liquidation is based on a debt arising as a result of an assessment issued by the plaintiff that was subsequently confirmed in a decision given by the Taxation Review Authority. The defendant's appeal against that decision was dismissed for want of prosecution by Courtney J on 22 July 2005. As a result, the debt cannot presently be said to be the subject of a dispute. [3] The only ground upon which the defendant advances the present application is that the interim orders for stay and restraint should remain in force until such time as its appeal against the judgment of Courtney J has been heard and determined by the Court of Appeal. [4] The principles governing orders for stay and restraint are well established. In short, the applicant must demonstrate that it would be oppressive, unfair or an abuse of the Court's powers to allow a liquidation to proceed further: see eg Nemisis Holdings Ltd v North Harbour Industrial Holdings Ltd (1989) 1 PRNZ 379 per Wallace J. [5] In the present case I am satisfied that no such issues arise. [6] The defendant owes a debt to the Commissioner that is not presently the subject of dispute. It is no longer trading, so no issue arises as to the prejudicial effect upon the defendant in the event that the proceeding is allowed to continue and be advertised. [7] The application for further stay and restraint is therefore dismissed. The interim order for stay and restraint of advertising is discharged. The proceeding is to be listed before me in the Liquidations List on 6 April 2006 at 10 am. The proceeding is to be advertised in accordance with the rules prior to that date.[8] I do not discount the possibility that, provided a hearing date in the Court of Appeal is imminent, the proceeding may be adjourned further when it is called on 6 April 2006. That is, however, a matter that will need to be considered when the matter is next called in light of the circumstances then pertaining. [9] I award costs to the plaintiff on a category 2B basis together with disbursements as fixed by the Registrar. _____________________________Associate Judge D.H. Abbott