NEW ZEALAND HOUSING FOUNDATION V ROYCE INVESTMENTS LTD HC AK CIV 2009-404-003521

NEW ZEALAND HOUSING FOUNDATION V ROYCE INVESTMENTS LTD HC AK CIV 2009-404-003521 24 September 2009IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2009-404-003521UNDER section 290 of the Companies Act 1993 BETWEEN NEW ZEALAND HOUSING FOUNDATION Plaintiff AND ROYCE INVESTMENTS LIMITED Defendant Hearing: 24 September 2009 Appearances: J Ropati for Plaintiff P F Chambers for Defendant Judgment: 24 September 2009 at 4 pmORAL JUDGMENT OF ASSOCIATE JUDGE ROBINSONSolicitors: J Ropati, Barrister, PO Box 90 232, Herne Bay, AucklandP F Chambers, Barrister, PO Box 41351, Auckland[1] The defendant is endeavouring to persuade me that I should stay these proceedings and that this Court is not bound by the findings of Associate Judge Christiansen as to the defences raised by the defendant to the statutory demand that was served upon it. Counsel for the defendant conceded that normally the rule of res judicata would apply and I cannot review Judge Christiansen's decision relating to the statutory demand. However, counsel for the defendant submits that in the circumstances of this case there is evidence which was not readily available in time for the hearing before Judge Christiansen which would entitle me to come to a different view than Judge Christiansen with regard to the statutory demand. [2] In the meantime I have discussed with counsel the issue as to whether the defendant is solvent. Following those discussions, counsel advises that the defendant is prepared to pay the amount of the statutory demand plus the costs ordered against the defendant at the hearing before Judge Christiansen of $4,840 namely $61,090 into a solicitors trust account pending the outcome of the defendant's counter claim. In those circumstances I am prepared to adjourn this application to liquidate the defendant until next Friday 2 October 2009. If in the meantime $61,090 is paid by the defendant into a solicitors trust account with appropriate undertakings that the funds are not to be disbursed pending further order of the Court or agreement of the plaintiff. I will stay the plaintiff's application pending the outcome of the counter claim. On the other hand if such funds are not paid with such arrangements I will then proceed with the plaintiff's claim, the evidence establishing that the defendant is indeed insolvent. [3] On that basis therefore the proceedings will now be adjourned until 2 October. I reserve the question of costs. On 2 October 2009 I will also consider directions with regard to the counter claim. If the funds are paid in accordance with this direction then counsel should confer and agree upon an appropriate time table for the filing of a defence by the plaintiff to the counter claim, discovery and other issues that are normally discussed at the first case management conference. Having regard to the amount involved it may then be appropriate to direct that the counter claim be removed into the District Court because as I apprehend the amount beingclaimed is within that Court's jurisdiction and it may be more convenient for the proceedings to be dealt with in the District Court. ______________________Associate Judge Robinson