NEW ZEALAND OFFICE SUPPLIES LIMITED v PICKAPARK.CO.NZ LIMITED [2019] NZHC 1009 [9 May 2019].

NEW ZEALAND OFFICE SUPPLIES LIMITED v PICKAPARK.CO.NZ LIMITED [2019] NZHC 1009[9 May 2019].IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYI TE KŌTI MATUA O AOTEAROAŌTEPOTI ROHECIV-2018-412-98[2019] NZHC 1009BETWEEN NEW ZEALAND OFFICE SUPPLIESLIMITEDPlaintiffAND PICKAPARK.CO.NZ LIMITEDDefendantHearing 9 May 2019Appearances: S R Wells for PlaintiffNo appearance for DefendantJudgment: 9 May 2019ORAL JUDGMENT OF ASSOCIATE JUDGE LESTER[1] The judgment creditor in this matter seeks an order placing thedefendant/judgment debtor in liquidation.[2] The matter was commenced in early November 2018 relying on a statutorydemand issued in September 2018. The proceedings were served at the end ofNovember 2018.[3] The proceedings came before the High Court earlier this year and Minutes wereissued by the Court recording the defendant's intention to pay the debt. Last time thismatter was before the Court on 20 April 2019 I adjourned the application on thestrength of an email sent on behalf of the defendant from its director which wasaccompanied by what appeared to be a screen shot of an internet banking payment setup to pay the plaintiff. On the strength of that the matter was adjourned to Thursday9 May 2019 to allow the plaintiff to confirm that payment had been received.[4] On 8 May 2019 I requested the Registry to follow up on whether payment hadbeen made by the defendant and to have the plaintiff's counsel to confirm whetherpayment had been received. Plaintiff's counsel correctly noted that my prior Minuteonly called for the plaintiff to file a memorandum in the event that payment had beenmade but given the apparent evidence of payment previously before the Court, I askedcounsel to check with all parties on who may have received the payment on behalf ofthe plaintiff.[5] Plaintiff's counsel has provided a certificate on 9 May 2019 confirming thatthe debt remains unpaid and counsel has confirmed that he has made thorough checks.[6] A complication became apparent on the morning of 9 May 2019 when a furtheremail from the director of the defendant company was received, referring to thecompany having been removed from the Companies Office Register on30 January 2019.[7] Section 241(2)A of the Companies Act 1993 ("the Act") provides that the Courtmay not appoint a liquidator to a company that has been removed from the Registerunless the company is first restored to the Register under s 329 of the Act.[8] The jurisdiction under s 329 of the Act that may be exercised by an AssociateJudge. Section 329(1)(a)(ii) provides that the company may be restored if it at thetime it was removed from the Register it was a party to legal proceedings. That is thecase here, given the timing of the service of the proceedings that I have alreadyreferred to.[9] The email from the defendant's director referring to the company beingremoved from the Register of Companies also maintains the claim that the paymentwas in fact made. She says:From my side, the payment was processed when we had the money in one ofour bank accounts, it has since closed so I have to go to the branch to see if itis a glitch at my end [10] This is unconvincing, the director must know whether the payment has goneand the idea that the bank account from which the payment was made was closed atsome unspecified time after the alleged payment does not make sense. No bankstatement is produced showing the funds leaving the account. If the funds had beenin the account and paid out and a bank statement to that effect produced establishingthat the funds needed to be traced then that may be a different matter, but there is noevidence of that.[11] The defendant company has had a significant amount of time to pay this debt.The email on the morning of 9 May 2019 from the director of the defendant companyraises a number of issues about the debt, but the reality is that the Court has been toldover an extended period of time that the debt is going to be paid.[12] There was no appearance on 9 May 2019 by the defendant company.[13] Counsel for the plaintiff has made an oral application for the defendantcompany to be restored to the Register. In the circumstances, I am satisfied that thatis appropriate. Accordingly, there is an order under s 329(1) of the Act restoringPickapark.co.nz Limited to the Companies Office Register.[14] Given counsel for the plaintiff's careful investigation as to whether paymenthas been made, and his confirmation that payment has not been made, the plaintiff isentitled to the orders sought.[15] This matter was adjourned against the objection of the creditor at least twicepreviously and the Court is not prepared to adjourn it again.[16] Accordingly, there is an order placing Pickapark.co.nz Limited in liquidation.Grant Bruce Reynolds is appointed liquidator.[17] Liquidators' remuneration approved in accordance with his consent dated1 February 2019, subject to s 284 of the Companies Act 1993.[18] Costs to the applicant on a 2B basis.Plus disbursements as fixed by the Registrar.[19] Order timed at 10.26am on Thursday 9 May 2019.________________________________Associate Judge LesterSolicitors:Gallaway Cook Allan, Dunedin