FINNIE v REGISTRAR OF COMPANIES [2022] NZHC 59
The Court granted restoration under s329 because the applicant demonstrated he and his wife were creditors via outstanding shareholder advances, the company had substantial tax losses and a legitimate commercial purpose to be restored, and the Registrar consented; accordingly restoration was just and equitable with...
Source-derived case information.
- Citation
- [2022] NZHC 59
- Parties
- Applicant: Phillip James Finnie; Respondent: Registrar of Companies
- Court
- High Court
- Jurisdiction
- New Zealand
- Judgment Date
- 31 January 2022
- Procedural Posture
- Application for Restoration of Company Under Companies Act 1993 / Judgment on the Papers (determined on the Papers)
- Outcome
- Attitude Switchboards 2012 Ltd restored to the New Zealand companies register
- Legal Topics
- Restoration to Register, Strike Off, Shareholder Advances, Tax Losses, Companies Act S329
Source-derived case record
Summary, issues, holding and outcome
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Parties
Phillip James Finnie
Applicant
Registrar of Companies
Respondent
Procedural Posture
Application for Restoration of Company Under Companies Act 1993 / Judgment on the Papers (determined on the Papers)
Legal Issues
- 1 Whether s329 Companies Act 1993 grounds for restoration were established
- 2 Whether it was just and equitable to restore the company
- 3 Whether the applicant was a creditor/shareholder with an undischarged claim
Ratio Decidendi
The Court granted restoration under s329 because the applicant demonstrated he and his wife were creditors via outstanding shareholder advances, the company had substantial tax losses and a legitimate commercial purpose to be restored, and the Registrar consented; accordingly restoration was just and equitable with conditional compliance orders.
Court Disposition
Attitude Switchboards 2012 Ltd restored to the New Zealand companies register
Orders
- Attitude Switchboards 2012 Ltd is restored to the New Zealand companies register
- Attitude Switchboards 2012 Ltd shall forthwith file in the registry particulars of its registered address
Full Case Text
Judgment text and source record
1 paragraphs
FINNIE v REGISTRAR OF COMPANIES [2022] NZHC 59 [31 January 2022]IN THE HIGH COURT OF NEW ZEALANDINVERCARGILL REGISTRYI TE KŌTI MATUA O AOTEAROAWAIHŌPAI ROHECIV-2021-425-113[2022] NZHC 59UNDER the Companies Act 1993IN THE MATTER of an application for restoration of acompanyBETWEEN PHILLIP JAMES FINNIEApplicantAND REGISTRAR OF COMPANIESRespondentAppearances: M R M Coote for ApplicantG S Caro for RespondentJudgment: 31 January 2022(Determined on the papers)JUDGMENT OF OSBORNE JThis judgment was delivered by me on 31 January 2022 at 4.00 pm pursuant to Rule 11.5of the High Court RulesRegistrar/Deputy RegistrarDate:[1] Phillip James Finnie, the applicant, was the sole director and a 50 per centshareholder of Attitude Switchboards 2012 Ltd (Attitude) when Attitude was removedfrom the New Zealand companies register on 27 March 2018. Mr Finnie applies foran order that Attitude be restored to the register.[2] The Registrar of Companies consents to the order sought.Attitude's removal[3] By his affidavit filed in support of the application, Mr Finnie records thatAttitude was struck off the register after having failed to file annual tax returns. Heexplains a confusion in arrangements relating to Attitude following the liquidation ofa related company.The jurisdiction[4] Under s 329 Companies Act 1993, this Court may order a company that hasbeen removed from the register to be restored to the register. Such an order may bemade (amongst other reasons) if the Court is satisfied that at the time the companywas removed from the register a proper reason existed for the company to continue inexistence or the applicant was a creditor, shareholder or person who had anundischarged claim against the company or for any other reason it is just and equitableto restore the company to the register.Discussion[5] I am satisfied upon the basis of Mr Finnie's evidence that each of those groundsis established. There were outstanding shareholder advance accounts of Attitude owedto Mr Finnie and his wife (as shareholders). Attitude had a tax loss of over $1 millionand was eligible to make an income tax claim for a substantial portion of that. MrFinnie intends to move part of his business into Attitude.Order[6] I order:(a) Attitude Switchboards 2012 Ltd is restored to the New Zealandcompanies register;(b) Attitude Switchboards 2012 Ltd shall forthwith file in the registryparticulars of its registered address;(c) Attitude Switchboards 2012 Ltd shall by 1 April 2022 register financialstatements for any years in which it has to date not registered financialstatements;(d) there is no order as to the costs and disbursements of this proceeding;and(e) the hearing scheduled for 4 February 2022 is vacated.Osborne JSolicitors:Walker Murdoch Law Ltd, InvercargillCompanies Office, Christchurch