WEST END ROAD NOMINEE LIMITED V ATMORE HC AK CIV 2007-404-003488

WEST END ROAD NOMINEE LIMITED V ATMORE HC AK CIV 2007-404-003488

The court accepted the creditor's evidence (trust ledger statement and director's post-completion spreadsheets) establishing a $164,000 advance on 4 October 2002 and terms (repayable on or before issue of titles, interest 10% pa compounding). There was no bona fide, substantial dispute over existence or terms of the...

Source-derived case information.

Citation
openlaw-4c5e5f45_527b_41ae_9750_a2d886a28fa1.pdf
Parties
Applicant (company): West End Road Nominee Limited; Respondent (creditor): Robert Graeme Atmore
Court
High Court
Jurisdiction
New Zealand
Judgment Date
5 September 2008
Procedural Posture
Companies Act Application to Set Aside Statutory Demand / Judgment on Application to Set Aside (hearing 17 Oct 2007; Judgment 5 Sep 2008)
Outcome
Application to set aside statutory demand dismissed; order made to place West End Road Nominee Limited into liquidation under s291(1)(b) deferred to take effect 4:00pm on 26 September 2008; costs to respondent on a 2B basis.
Legal Topics
Statutory Demand, Liquidation, Genuine and Substantial Dispute Test, Extension of Time for Compliance, Paid Adviser Under Credit Contracts Act
Company Law Insolvency Consumer Credit Law Statutory Demand Liquidation Genuine and Substantial Dispute Test Extension of Time for Compliance Paid Adviser Under Credit Contracts Act

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Parties

West End Road Nominee Limited

Applicant (company)

Robert Graeme Atmore

Respondent (creditor)

Procedural Posture

Companies Act Application to Set Aside Statutory Demand / Judgment on Application to Set Aside (hearing 17 Oct 2007; Judgment 5 Sep 2008)

Legal Issues

  1. 1 Whether the statutory demand was stale and time for compliance could be extended
  2. 2 Whether there was a genuine and substantial dispute as to existence or terms of the alleged loan/debt
  3. 3 Whether the loan was a controlled credit contract requiring disclosure under the Credit Contracts Act 1981

Ratio Decidendi

The court accepted the creditor's evidence (trust ledger statement and director's post-completion spreadsheets) establishing a $164,000 advance on 4 October 2002 and terms (repayable on or before issue of titles, interest 10% pa compounding). There was no bona fide, substantial dispute over existence or terms of the loan and the Credit Contracts Act did not apply because the introducer was not a paid adviser; accordingly the s290 application to set aside was dismissed and the court ordered liquidation under s291(1)(b) with deferred effect.

Court Disposition

Application to set aside statutory demand dismissed; order made to place West End Road Nominee Limited into liquidation under s291(1)(b) deferred to take effect 4:00pm on 26 September 2008; costs to respondent on a 2B basis.

Orders

  • Application to set aside dismissed
  • Order placing West End Road Nominee Limited into liquidation under s291(1)(b) to take effect at 4:00pm on 26 September 2008