ALEXANDER v REGISTRAR OF COMPANIES [2020] NZHC 2491

ALEXANDER v REGISTRAR OF COMPANIES [2020] NZHC 2491 [23 September 2020]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECIV-2020-409-423[2020] NZHC 2491UNDER the Companies Act 1993IN THE MATTER of the liquidation of R A HAMPTONLIMITED (removed)BETWEEN PITA SHAND ALEXANDERApplicantAND REGISTRAR OF COMPANIESFirst RespondentAND THE SECRETARY TO THE TREASURYSecond RespondentHearing: Determined on the papersCounsel: C T Jolliffe for ApplicantJudgment: 23 September 2020JUDGMENT OF ASSOCIATE JUDGE LESTERThis judgment was delivered by me on 23 September 2020 at 4.00pmpursuant to Rule 11.5 of the High Court RulesRegistrar/Deputy Registrar23 September 2020[1] Pita Shand Alexander (Mr Alexander) applies to restore R A Hampton Ltd (thecompany) to the Companies Office Register under s 329 of the Companies Act 1993(the Act).[2] Mr Alexander seeks to utilise the originating application procedure to haveservice dispensed with and that the orders be made on the papers.Background[3] The company was placed into liquidation on 29 October 2013 andMr Alexander was appointed liquidator. The company had no unsecured creditorsand was not involved in any litigation at the time it was struck off the Register, indeed,the final liquidator's report records a distribution to the shareholders at the conclusionof the liquidation.[4] Mr Alexander has become aware that at the time the company was removedfrom the Register on 23 November 2016, the company was actually a creditor ofa company called Cathcart Holdings Ltd (Cathcart), with that indebtedness secured bya mortgage held by the company. Cathcart wishes to refinance the debt owed to thecompany and requires the company to discharge the mortgages. The company isunable to do that unless it is restored to the Register. Mr Alexander explains theexistence of this asset in the liquidation was overlooked at the time he filed his finalreport, due to misunderstandings and miscommunications between himself and thecompany solicitor.[5] Mr Alexander filed his final report on 14 November 2016 with a request thatthe company be removed from the Register, hence the necessity for this application.Service and use of originating application procedure[6] Mr Alexander has obtained the consent of the directors and shareholders of thecompany. The Secretary to the Treasury and the Registrar of Companies were providedwith copies of the application in draft and have both, in writing, confirmed they willabide by the Court's decision in respect of the application.[7] Again, the liquidation was in effect a solvent one, given Mr Alexander'sconfirmation that there were no unsecured debts at the time of liquidation and withthere being a payment to shareholders.[8] Accordingly, I direct that service of these proceedings is dispensed with.[9] It follows that it is also appropriate that leave be given for the application to bebrought by way of originating application. Such is necessary as an application torestore a company to the Register is not one that can be brought as of right under theHigh Court Rules 2016, but, given the uncontentious nature of this application, it isappropriate that an efficient and cost effective procedure be adopted, and leaveis granted accordingly.The substantive applications[10] Two substantive orders are sought. The first is the reversal of the filing of theliquidator's final report in respect of the company – that report dated14 November 2016 and secondly, the restoration of the company to the Register.[11] The two steps are necessary for the reasons given in The Registrar ofCompanies v Body Corporate 307730.1 The effect of reversing the filing of theliquidator's final report is that upon restoration the company will again be inliquidation with the same liquidator.[12] Accordingly, there is an order under s 284(1)(b) of the Act reversing the finalliquidator's report in respect of R A Hampton Ltd, dated 14 November 2016.[13] There is then an order under s 329(1) of the Act restoring R A Hampton Ltd tothe Register of Companies with Pita Shand Alexander as the sole liquidator.1 The Registrar of Companies v Body Corporate 307730 [2013] NZCA 659, [2014] 2 NZLR 623.[14] It follows, with the substantive application being dealt with on a without noticebasis, that the matter is to be removed from the List on 29 October 2020.[15] No orders as to costs are sought and so none are made.__________________________________Associate Judge LesterSolicitors:Anthony Harper, Christchurch