MIELE NEW ZEALAND LIMITED V BAST INVESTMENTS LIMITED HC WN CIV-2010-485-348

MIELE NEW ZEALAND LIMITED V BAST INVESTMENTS LIMITED HC WN CIV-2010-485-348 12 April 2010IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV-2010-485-348UNDER the Companies Act 1993 BETWEEN MIELE NEW ZEALAND LIMITED Plaintiff AND BAST INVESTMENTS LIMITED Defendant Hearing: 12 April 2010 Appearances: O. Lund - Counsel for Plaintiff No appearance for the Defendant Judgment: 12 April 2010DECISION OF ASSOCIATE JUDGE D.I. GENDALL RECALLING ORDERSSolicitors: Rainey Collins, Lawyers, PO Box 689, Wellington 6140 Craig Griffin & Lord, Solicitors, PO Box 9049, Newmarket, Auckland[1] An application by the plaintiff to place the defendant into liquidation came before me today, 12 April 2010 in the bankruptcy and company liquidation list commencing at 10.00 am. [2] Ms O Lund appeared for the plaintiff. There was no appearance for the defendant company. At 11.13 am I made an order placing the defendant into liquidation and appointed Dennis John Wood and Roy Horrocks as liquidators. [3] That order for liquidation noted the following which I included in a Minute issued at the time:(a) The defendant has purported to advise the Court that it was placed into voluntary liquidation by Shareholders' Resolution passed on 7 April 2010. (b) In terms of the Companies Act 1993 that resolution is ineffective to place the defendant company into voluntary liquidation as it was not passed within 7 days of service of the present liquidation proceeding on the company pursuant to the Companies Act 1993. (c) An order is now made annulling that attempt to place the defendant company into voluntary liquidation and cancelling the purported appointment of Mark David Stevens as liquidator.[4] Those orders were made following submission from Ms Lund, counsel for the plaintiff that the relevant provision of the Companies Act 1993 provided that any Shareholders' Resolution to place the company into voluntary liquidation had to be passed within 7 days of service of the liquidation proceeding on the company. [5] Counsel for the plaintiff noted that the present liquidation proceeding was served on the defendant company on 23 March 2010 and the Shareholders' Resolution purporting to place the company into voluntary liquidation was not passed until 7 April 2010. She submitted therefore that the Shareholders' Resolution was not passed within the 7 day time period required under the Companies Act 1993. [6] On this basis, and rather unfortunately without checking the necessary provision in the Companies Act 1993, I proceeded to deal with this matter thismorning, the defendant company being unrepresented and having filed no formal Notice of Opposition to the present application. [7] Accordingly the orders I have noted above were made and at 11.13 am an order of this Court was made placing the defendant company into liquidation and appointing Dennis John Wood and Roy Horrocks as liquidators. [8] It is now 11.30 am. Although regrettably I did not have the relevant provisions of the Companies Act 1993 before me in Court when I made the earlier order at 11.13 am (for which I apologise), I have now had an opportunity to consider s 241AA Companies Act 1993. [9] That section provides that a liquidator of a company may only be appointed by a Shareholders' Resolution under section 241(2)(a) Companies Act 1993 if the liquidator is appointed within 10 working days after service on the company of the application. [10] The application here was served on the defendant company on 23 March 2010. The Shareholders' Voluntary Resolution was passed on 7 April 2010. [11] Ten working days from the 23 March 2010 date of service extends to at least 8 April 2010 given the intervention of the Easter Holiday break in the mean time. [12] That said, the Shareholders' Resolution passed on 7 April 2010 was therefore made in time in terms of the 10 working day period provided for in section 241AA(2) Companies Act 1993. [13] My decision and the orders made at 11.13 am today were therefore made in error. [14] An order is now made recalling that decision made at 11.13 am today and rescinding the orders appointing Dennis John Wood and Roy Horrocks as liquidators.[15] That Shareholders' Resolution placing the defendant into voluntary liquidation and appointing Mark David Stevens as liquidator therefore remains in place in the mean time. [16] Given the voluntary liquidation of the defendant company, an order is now made dismissing the present application by the plaintiff. Costs, however, are awarded on this matter to the plaintiff on a Category 2B basis together with disbursements as fixed by the Registrar.'Associate Judge D.I. Gendall'