HAYES v THE REGISTRAR OF COMPANIES [2013] NZHC 1236
The statutory prerequisites of s329 were satisfied (the company was in liquidation when removed and the applicant was the liquidator) and relevant parties did not oppose restoration; therefore the Court properly exercised its discretion to restore the company to enable the liquidator to pursue the specified claims.
Source-derived case information.
- Citation
- [2013] NZHC 1236
- Parties
- Plaintiff / Former Liquidator: Nicholas John Hayes; Defendant: Registrar of Companies
- Court
- High Court
- Jurisdiction
- New Zealand
- Judgment Date
- 28 May 2013
- Procedural Posture
- Application Under Part 18 High Court Rules to Restore Company to Register (companies Act 1993 S329) / Hearing and Oral Judgment (28 May 2013)
- Outcome
- Application granted; company restored and liquidator confirmed; administrative correction to register ordered.
- Legal Topics
- Restoration to Register, Liquidation, Preferential Creditor Claims, Registrar of Companies, Remedial Recovery Actions Against Directors/shareholders
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nicholas John Hayes
Plaintiff / Former Liquidator
Registrar of Companies
Defendant
Procedural Posture
Application Under Part 18 High Court Rules to Restore Company to Register (companies Act 1993 S329) / Hearing and Oral Judgment (28 May 2013)
Legal Issues
- 1 Whether the Court may restore a company removed from the register under s329 of the Companies Act 1993
- 2 Whether the applicant had standing as the former liquidator under s329(2)(a)(v)
- 3 Whether restoration was appropriate to enable the liquidator to pursue an Inland Revenue preferential claim and recovery of funds from shareholders/directors
Ratio Decidendi
The statutory prerequisites of s329 were satisfied (the company was in liquidation when removed and the applicant was the liquidator) and relevant parties did not oppose restoration; therefore the Court properly exercised its discretion to restore the company to enable the liquidator to pursue the specified claims.
Court Disposition
Application granted; company restored and liquidator confirmed; administrative correction to register ordered.
Orders
- Smartcare Services Group Ltd is restored to the register of companies.
- The plaintiff is confirmed as liquidator.
Full Case Text
Judgment text and source record
1 paragraphs
HAYES v THE REGISTRAR OF COMPANIES [2013] NZHC 1236 [28 May 2013]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYCIV-2012-419-1743[2013] NZHC 1236IN THE MATTER of an application under Part 18 of the HighCourt RulesIN THE MATTER of Smartcare Services Group Limited(struck off)IN THE MATTER of the Companies Act 1993 section 329being an application to restore thecompany to the New Zealand registerBETWEEN NICHOLAS JOHN HAYES liquidator ofHamilton as former liquidator ofSmartCare Services Group Ltd (Struckoff)PlaintiffAND THE REGISTRAR OF COMPANIESDefendantHearing: 28 May 2013Counsel: DG Hayes for plaintiffNo appearance for defendantJudgment: 28 May 2013(ORAL) JUDGMENT OF ASSOCIATE JUDGE FAIRE[on application to restore company to register of companies][1] Application is made by the former liquidator of Smartcare Services Group Ltd to restore that company to the register of companies. The application is made in reliance on s 329 of the Companies Act 1993. Particular reliance is placed on s 329(1)(a)(iii) and (2)(a)(v).[2] Section 329(1)(a)(iii) provides:329 Court may restore company to New Zealand register(1) The Court may, on the application of a person referred to in subsection (2)of this section, order that a company that has been removed from the New Zealand register be restored to the register if it is satisfied that,—(a) At the time the company was removed from the register,—(iii) The company was in receivership, or liquidation, or both;[3] Section 329(2)(a)(v) provides:(2) The following persons may make an application under subsection (1) of this section:(a) Any person who, at the time the company was removed from the New Zealand register,—(v) Was the liquidator, or a receiver of the property of, the company:[4] The application is made so that the former liquidator can take appropriate action arising from a notification from the Commissioner of Inland Revenue concerning a default and a claim for a preferential claim and to enable the former liquidator to consider taking remedial action to recover funds transferred either bythe shareholders or directors out of the company's assets.[5] As a result of the filing of this proceeding and directions for service that I have given, the following have signalled their respective positions in relation to this proceeding. The Secretary for Treasury and a creditor, ACC, have recorded their non-opposition to the relief sought in the amended statement of claim. The majorcreditor, the Commissioner of Inland Revenue, advises that the Commissioner will abide the decision of the court, as does the Registrar of Companies.[6] The shareholders and directors have been served with the proceeding, but have taken no steps.[7] I am satisfied that the relief sought in the amended statement of claim is appropriate and will enable the former liquidator to advance a claim in the areas mentioned in this judgment and more particularly set out in paragraphs 12 and 13 of the amended statement of claim.[8] Accordingly, I order:a) Smartcare Services Group Ltd is restored to the register of companies;b) The plaintiff is confirmed as liquidator;c) The document recorded as the final report of the liquidator dated 23 August 2012 shall be removed from the documents contained in the register of companies.____________________JA FaireAssociate Judgec