BARONIAN v THE REGISTRAR OF COMPANIES [2022] NZHC 964
The applicant is a creditor with an undischarged claim evidenced by a Disputes Tribunal judgment and therefore falls within s321(1)(d); the Court has power under s323 to prevent deregistration and, exercising that power, ordered Cashmere Glass Ltd not be removed from the register for 12 months to permit enforcement;...
Source-derived case information.
- Citation
- [2022] NZHC 964
- Parties
- Applicant: Kim Haron Baronian; Respondent: The Registrar, Companies Office, New Zealand
- Court
- High Court
- Jurisdiction
- New Zealand
- Judgment Date
- 9 May 2022
- Procedural Posture
- Application to Prevent Deregistration of Company Under Companies Act 1993 S321 / Judgment Following Hearing (order Issued 9 May 2022)
- Outcome
- Order made preventing removal of Cashmere Glass Ltd from the New Zealand Register of Companies for 12 months
- Legal Topics
- Deregistration of Company, Creditors' Objection Under S321, Court Power Under S323, Enforcement of Disputes Tribunal Judgment
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kim Haron Baronian
Applicant
The Registrar, Companies Office, New Zealand
Respondent
Procedural Posture
Application to Prevent Deregistration of Company Under Companies Act 1993 S321 / Judgment Following Hearing (order Issued 9 May 2022)
Legal Issues
- 1 Whether applicant qualifies to object to removal under s321(1)(d) as a creditor with an undischarged claim
- 2 Whether the Court should exercise its power under s323 to prevent removal of the company from the register
- 3 Whether service on the company or its officers was required given non-compliance and the death of the sole director
Ratio Decidendi
The applicant is a creditor with an undischarged claim evidenced by a Disputes Tribunal judgment and therefore falls within s321(1)(d); the Court has power under s323 to prevent deregistration and, exercising that power, ordered Cashmere Glass Ltd not be removed from the register for 12 months to permit enforcement; service on the company or its officers was unnecessary given the company's non-compliance and the death of its sole director.
Court Disposition
Order made preventing removal of Cashmere Glass Ltd from the New Zealand Register of Companies for 12 months
Orders
- Under s323 of the Companies Act 1993, Cashmere Glass Ltd shall not be removed from the New Zealand Register of Companies for a period of 12 months from 9 May 2022
- Leave reserved for the applicant to apply to extend the order on notice to the Registrar of Companies
Full Case Text
Judgment text and source record
1 paragraphs
BARONIAN v THE REGISTRAR OF COMPANIES [2022] NZHC 964 [9 May 2022]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECIV-2022-409-000109[2022] NZHC 964UNDER Section 321 of the Companies Act 1993IN THE MATTER of an application to prevent thederegistration of a companyBETWEEN KIM HARON BARONIANApplicantAND THE REGISTRAR, COMPANIES OFFICE,NEW ZEALANDRespondentHearing: 28 April 2022 (List Court)Counsel: Ms Baronian, self-representedNo appearance on behalf of the Registrar of CompaniesJudgment: 9 May 2022JUDGMENT OF ASSOCIATE JUDGE PAULSENThis judgment was delivered by me on 9 May 2022 at 3.00 pmpursuant to Rule 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:[1] Ms Baronian seeks an order that Cashmere Glass Ltd not be removed from theCompanies Register pursuant to s 323 of the Companies Act 1993.[2] The Registrar of Companies has been served and abides the decision of theCourt.Background[3] The Registrar of Companies gave notice of its intention to remove CashmereGlass Ltd from the register. It appears that the company had failed to file its annualreturn.[4] Prior to the Registrar initiating further action to remove the company, on18 March 2022 Ms Baronian notified the Registrar of her objection to the company'sremoval from the register.[5] On 28 March 2022, Ms Baronian commenced this proceeding and served theRegistrar with it on 29 March 2022.[6] On 31 March 2022, the Registrar acknowledged service of the proceeding andadvised it would abide the decision of the Court. The Registrar also advised thatCashmere Glass Ltd would not be removed from the register pending a further Courtruling on Ms Baronian's application.[7] The application came before me on 28 April 2022 and, after hearing from MsBaronian, I adjourned the application so that Ms Baronian, who is self-represented,could provide me with some more information in relation to it.[8] In the minute issued following the hearing, I granted Ms Baronian leave tocommence the proceeding by way of originating application under r 19.5 of the HighCourt Rules 2016.Grounds of the application[9] The application is made in reliance upon s 321(1)(d) of the Companies Act.That subsection allows a person to object to the removal of a company from theregister if that person is a creditor, or a shareholder, or a person who has anundischarged claim against the company.[10] Ms Baronian is a creditor of the company with an undischarged claim havingobtained an order of the Disputes Tribunal on 11 October 2021 that Cashmere GlassLtd pay her $11,356.08 before 11 November 2021. The debt remains unpaid.[11] Ms Baronian is in the process of taking enforcement action against thecompany to recover the debt and requires the order sought so that the steps she has orwill take can be completed.[12] I am satisfied that Ms Baronian has made out the grounds for the substantiveorder sought.[13] I am also satisfied there would be little point in directing service of theproceeding on Cashmere Glass Ltd or any shareholder or director of that company inlight of the company's non-compliance with its statutory obligations and because thecompany's sole shareholder and director, James Gregory Truman, has passed away.[14] There shall be orders as follows:(a) Under s 323 of the Companies Act 1993, Cashmere Glass Ltd shall notbe removed from the New Zealand Register of Companies for a periodof 12 months from today (which I consider adequate time forMs Baronian to complete any execution processes to recover her debt).(b) I reserve leave for Ms Baronian to apply to extend the order made in(a) on notice to the Registrar of Companies.(c) Ms Baronian must seal a copy of this order and serve it upon theRegistrar of Companies within five working days of this decision.[15] Ms Baronian has not sought costs and as she is not legally represented, she isnot entitled to claim costs in any event. I consider she is entitled to reimbursementfrom Cashmere Glass Ltd of her filing fee on the application in the sum of $540, andI so order._______________________O G PaulsenAssociate JudgeCopy to: Ms K H Baronian