MINISTRY OF HEALTH v REGISTRAR OF COMPANIES [2022] NZHC 675

MINISTRY OF HEALTH v REGISTRAR OF COMPANIES [2022] NZHC 675 [4 April 2022]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECIV-2021-419-000231[2022] NZHC 675UNDER Companies Act 1993IN THE MATTER OF An application to restore NZ WATERPURIFIER LIMITED to the CompaniesRegisterBETWEEN MINISTRY OF HEALTHApplicantAND REGISTRAR OF COMPANIESFirst RespondentTHE TREASURYSecond RespondentHearing: On the papersCounsel: J D Williams for ApplicantFirst and Second Respondent abiding the decision of the CourtJudgment: 4 April 2022JUDGMENT OF ASSOCIATE JUDGE P J ANDREWThis judgment was delivered by Associate Judge Andrewon 4 April 2022 at 2.30 pmpursuant to r 11.5 of the High Court RulesRegistrar / Deputy RegistrarDate .Introduction[1] The applicant, the Ministry of Health, seeks an order under s 329 of theCompanies Act 1993 restoring NZ Water Purifier Ltd to the Companies Register.[2] The application has been served upon the two respondents, neither of whomoppose the application. Mr Michael Main, the former director of the company, hasfiled a notice of objection.[3] The application is being determined on the papers.Decision[4] The principal basis for the restoration order sought is that the company wasremoved from the Register at a time when legal proceedings were on foot against it.Those criminal proceedings, filed against the company and shareholder, Mr RogerBlake, were brought under the Medicines Act 1991 and are currently before theThames District Court.[5] Section 329(1)(a)(ii) of the Companies Act 1993 expressly provides that theCourt may on the application of a person who at the time a company was removed wasa party to legal proceedings against the company, order that the company be restoredif it is satisfied that those proceedings were ongoing at the time the company wasremoved.[6] In his notice of objection, Mr Main contends that the applicant failed to objectto the proposed removal of the company. He relies on the procedure set out in Part 17of the Companies Act 1993. This appears to be the principal ground of objection.[7] However, as the applicant submits, the Court has an express power under s 329to ensure that relief may be obtained where circumstances existed at the time acompany was removed from the Register that were not then known to the Registrar.[8] The following comments from the Court of Appeal in Commissioner of InlandRevenue v Commercial Management1 are relevant:1 Commissioner of Inland Revenue v Commercial Management [2019] NZCA 479 at [29].The provisions concerning removal of a company are designed to ensure thata company is only removed when there is no good reason for it to continue inexistence. The controllers of the company and other interested persons aregiven the opportunity to object to removal for a range of reasons. But therecan be cases where a company is removed from the Register as a result of anerror or oversight, or where the circumstances change and it becomes apparentwith the benefit of hindsight that there were good reasons for the company tocontinue in existence. In such cases, a company can be restored to theRegister.[9] It is noticeable that Mr Main, in his notice of objection, does not dispute thatthe company was a party to legal proceedings at the time it was removed. To thecontrary, it is clear from the evidence before the Court that at the time the process toremove the company from registration was initiated, both the company and its soleshareholder, Mr Roger Blake, were aware of the criminal proceedings against themand that those proceedings remained outstanding.[10] None of the other grounds of objection referred to by Mr Main in hisdocumentation of 30 November 2021 provide any basis for my refusing the ordersought. In particular, the contention by Mr Main that he has "full diplomaticimmunity" based on customary law/lore is not a valid basis for refusing the ordersought.[11] In all the circumstances, I conclude that the applicant has established a properbasis under s 329 for an order restoring the company to the Register. I accordinglygrant the application under s 329 and make an order restoring the company to theRegister.Result[12] I grant the application to restore the company to the Register pursuant to s 329of the Companies Act 1993.__________________________Associate Judge P J Andrew