TREVOR OGILVIE AND GWENDOLYNNE ANNE OGILVIE V L STEVENS BUILDERS LIMITED HC ROT CIV 2010-463-000155

TREVOR OGILVIE AND GWENDOLYNNE ANNE OGILVIE V L STEVENS BUILDERS LIMITED HC ROT CIV 2010-463-000155

The statutory demand issued on 21 February 2011 was not defective because a judgment need not be sealed before a statutory demand may validly be issued under the Companies Act 1993; issuance of the statutory demand was not a 'step taken on a judgment' requiring leave under High Court Rules r 11.13, therefore retrospective leave was not required and the strike out application failed, supporting the appointment of liquidators.

Citation
openlaw-1482aee1_e79a_4afa_9a4b_7521e7738b49.pdf
Parties
Plaintiffs/respondents: Trevor Ogilvie and Gwendolynne Anne Ogilvie; Defendant/applicant: L Stevens Builders Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
7 July 2011
Procedural Posture
Application to Strike Out and Liquidation Under the Companies Act 1993 / Hearing on Strike Out Application and Liquidation Application (judgment and Reasons Delivered)
Outcome
Strike out application dismissed; order made for liquidation of L Stevens Builders Limited and costs awarded to the plaintiffs
Legal Topics
Statutory Demand, Liquidation, Sealing of Judgment, Abuse of Process, Leave to Take Steps on a Judgment
Company Law Insolvency Civil Procedure Statutory Demand Liquidation Sealing of Judgment Abuse of Process Leave to Take Steps on a Judgment

Case Brief

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Parties

Trevor Ogilvie and Gwendolynne Anne Ogilvie

Plaintiffs/respondents

L Stevens Builders Limited

Defendant/applicant

Procedural Posture

Application to Strike Out and Liquidation Under the Companies Act 1993 / Hearing on Strike Out Application and Liquidation Application (judgment and Reasons Delivered)

Legal Issues

  1. 1 Whether service of a statutory demand constituted a 'step taken on a judgment' requiring leave under the rules
  2. 2 Whether leave to take such a step can be granted retrospectively
  3. 3 Whether the plaintiffs' conduct amounted to an abuse of process by issuing two statutory demands and pursuing liquidation proceedings

Ratio Decidendi

The statutory demand issued on 21 February 2011 was not defective because a judgment need not be sealed before a statutory demand may validly be issued under the Companies Act 1993; issuance of the statutory demand was not a 'step taken on a judgment' requiring leave under High Court Rules r 11.13, therefore retrospective leave was not required and the strike out application failed, supporting the appointment of liquidators.

Court Disposition

Strike out application dismissed; order made for liquidation of L Stevens Builders Limited and costs awarded to the plaintiffs

Orders

  • Order that L Stevens Builders Limited be placed into liquidation
  • Costs awarded to the plaintiffs (agreed 2B costs) in the sum of 8157.80 NZD