SJ FOOTE AND SD FOOTE AS TRUSTEES OF THE FOOTE FAMILY TRUST V KELTERN STUD LIMITED HC NAP CIV-2012-441-497

SJ FOOTE AND SD FOOTE AS TRUSTEES OF THE FOOTE FAMILY TRUST V KELTERN STUD LIMITED HC NAP CIV-2012-441-497

Leave to file the statement of defence out of time was granted because the defendant demonstrated an arguable defence as to the characterisation of the $313,213, solvency was not shown to be established, considerations of justice favored permitting the defence and allowing full evidential exchange before deciding the liquidation application.

Citation
openlaw-92d7f98e_e152_41d9_8521_37dfcd5bddeb.pdf
Parties
Plaintiff Trustee of the Foote Family Trust: Susanne Jane Foote; Plaintiff Trustee of the Foote Family Trust: Stuart David Foote; Defendant: Keltern Stud Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
13 December 2012
Procedural Posture
Liquidation Application Pursuant to Statutory Demand / Application for Leave to File Statement of Defence Out of Time; Liquidation Hearing Timetabled
Outcome
Leave granted to the defendant to file its statement of defence out of time; liquidation application adjourned and timetabled for hearing
Legal Topics
Statutory Demand, Shareholders' Loans Vs Equity, Just and Equitable Winding Up, Extension of Time to File Defences
Company Law Insolvency Civil Procedure Trusts Statutory Demand Shareholders' Loans Vs Equity Just and Equitable Winding Up Extension of Time to File Defences

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Parties

Susanne Jane Foote

Plaintiff Trustee of the Foote Family Trust

Stuart David Foote

Plaintiff Trustee of the Foote Family Trust

Keltern Stud Limited

Defendant

Procedural Posture

Liquidation Application Pursuant to Statutory Demand / Application for Leave to File Statement of Defence Out of Time; Liquidation Hearing Timetabled

Legal Issues

  1. 1 Whether the $313,213 is a debt (shareholders' loan) or equity (shareholder funds)
  2. 2 Whether the defendant company is insolvent
  3. 3 Whether leave should be granted to file a statement of defence out of time

Ratio Decidendi

Leave to file the statement of defence out of time was granted because the defendant demonstrated an arguable defence as to the characterisation of the $313,213, solvency was not shown to be established, considerations of justice favored permitting the defence and allowing full evidential exchange before deciding the liquidation application.

Court Disposition

Leave granted to the defendant to file its statement of defence out of time; liquidation application adjourned and timetabled for hearing

Orders

  • Leave granted to the defendant company to file and serve its statement of defence out of time
  • Registrar to liaise with counsel to set the plaintiffs' liquidation application down for a half‑day hearing at the first available suitable date