DUKE v THE REGISTRAR OF COMPANIES [2014] NZHC 26

DUKE v THE REGISTRAR OF COMPANIES [2014] NZHC 26 [29 January 2014]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2014-404-000125[2014] NZHC 26UNDER Section 329 of the Companies Act 1993BETWEEN HAMISH LLEWELLYN DUKE on behalfof DUKE & KIRK INVESTMENTSLIMITEDApplicantAND THE REGISTRAR OF COMPANIESRespondentHearing: 29 January 2014Appearances: J S T Nguy for ApplicantNo appearance for RespondentJudgment: 29 January 2014JUDGMENT OF COURTNEY JThis judgment was delivered by Justice Courtneyon 29 January 2014 at 4.00 pmpursuant to R 11.5 of the High Court RulesRegistrar / Deputy RegistrarDate..[1] The applicant is Hamish Llewellyn Duke on behalf of Duke & Kirk Investments Ltd which was incorporated in 2007. It was struck off the Companies Register in October 2008 because it had not filed an annual return. It now seeks an order under s 329 of the Companies Act 1993 that it be restored to the Register.[2] The evidence in support of the application comes from Mr Duke, a directorand 50 per cent shareholder. He has explained that the company's business isproperty ownership and that the company owns two properties which it is the registered proprietor. The failure to file the annual return was an oversight on MrDuke's part. He did not realise that the company was required to file annual returns and had been carrying on the company's affairs in the belief that the company wasstill registered.[3] There is some urgency to the application because the company's status hasthe potential to affect the acquisition by Mr Duke of properties which he has agreedto purchase. Settlement of those purchases is due on 7 February 2014. Mr Duke'sbank has, however, refused to make funds available to settle the purchases while the company is struck off the Register. It is not clear to me, and Mr Nguy was not able to assist, why the bank should take that position since it is not the company who is the proposed purchaser. Nevertheless, I accept Mr Duke's evidence.[4] Mr Nguy has provided copies of letters from the Registrar of Companies and from the Treasury confirming that neither has any objection to the application.[5] I am satisfied that the striking off of the company from the Register was due to an oversight by Mr Duke. I am satisfied that there will be no adverse effect, if the company is restored, on third parties and in the absence of any objection from the Registrar of Companies I make the order as sought.____________________P Courtney J