PUBLIC TRUST V DELKING DISTRIBUTORS LIMITED HC AK CIV 2006-404-5998

PUBLIC TRUST V DELKING DISTRIBUTORS LIMITED HC AK CIV 2006-404-5998

Delking failed to establish a substantial dispute under s 290(4) because its assertions (notably alleged double‑counting of costs) were insufficiently particularised; accordingly the statutory demand was not set aside, time for compliance was extended and advertising of the liquidation was restrained pending compliance.

Citation
openlaw-f9a81faf_2c8b_4f80_a582_36750c28a9af.pdf
Parties
Plaintiff/respondent: Public Trust; Defendant/applicant: Delking Distributors Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
8 May 2007
Procedural Posture
Set Aside Statutory Demand; Liquidation Proceeding Under Companies Act 1993 / Interlocutory Hearing; Application to Set Aside Statutory Demand
Outcome
Application to set aside the statutory demand dismissed; time for compliance with the statutory demand extended; advertising of liquidation restrained; directions given for amended statement of defence and case management if non‑compliance.
Legal Topics
Statutory Demand, Set Aside, Contractual Costs Recovery, Liquidation Advertising Restraint, Procedural Timeliness
Company Law Contract Law Insolvency Law Statutory Demand Set Aside Contractual Costs Recovery Liquidation Advertising Restraint Procedural Timeliness

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Parties

Public Trust

Plaintiff/respondent

Delking Distributors Limited

Defendant/applicant

Procedural Posture

Set Aside Statutory Demand; Liquidation Proceeding Under Companies Act 1993 / Interlocutory Hearing; Application to Set Aside Statutory Demand

Legal Issues

  1. 1 Whether there is a substantial dispute under s 290(4) of the Companies Act 1993 as to whether the debt is owing or due
  2. 2 Whether costs claimed under clause 11.1(3) of the lease are recoverable and whether alleged double‑counting creates a substantial dispute
  3. 3 Whether the statutory demand should be set aside for want of particularised evidence

Ratio Decidendi

Delking failed to establish a substantial dispute under s 290(4) because its assertions (notably alleged double‑counting of costs) were insufficiently particularised; accordingly the statutory demand was not set aside, time for compliance was extended and advertising of the liquidation was restrained pending compliance.

Court Disposition

Application to set aside the statutory demand dismissed; time for compliance with the statutory demand extended; advertising of liquidation restrained; directions given for amended statement of defence and case management if non‑compliance.

Orders

  • Extend time for filing affidavits in opposition to the application to set aside the statutory demand
  • Dismiss the application to set aside the statutory demand