OPTIMIZER HQ LTD (in liq) v BANK OF NEW ZEALAND [2021] NZHC 462

OPTIMIZER HQ LTD (in liq) v BANK OF NEW ZEALAND [2021] NZHC 462

Because the original statement of claim had been struck out by the Court and that decision remained extant pending any successful appeal, there was no live proceeding in which an amended statement of claim could be filed; accordingly the Registrar was directed to return the amended statement of claim and any party wishing to proceed must commence fresh proceedings through solicitors and comply with filing fee or waiver requirements.

Citation
[2021] NZHC 462
Parties
Plaintiff (in Liquidation): Optimizer HQ Limited (in liquidation); First Defendant: Bank of New Zealand; Second Defendant: Smartpay Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
10 March 2021
Procedural Posture
Civil Litigation Strike Out Application / Post Strike Out; Application to File Amended Statement of Claim Returned by Registrar
Outcome
Amended statement of claim dated 31 October 2020 ordered returned to Optimizer; original proceedings are at an end; plaintiff or any assignee must commence fresh proceedings if it wishes to proceed.
Legal Topics
Strike Out, Amended Statement of Claim, Return of Documents, Costs, Appeal, Security for Costs, Liquidator Representation
Civil Procedure Insolvency Banking and Finance Law Limitation Law Strike Out Amended Statement of Claim Return of Documents Costs +3 more

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Parties

Optimizer HQ Limited (in liquidation)

Plaintiff (in Liquidation)

Bank of New Zealand

First Defendant

Smartpay Limited

Second Defendant

Procedural Posture

Civil Litigation Strike Out Application / Post Strike Out; Application to File Amended Statement of Claim Returned by Registrar

Legal Issues

  1. 1 Whether an amended statement of claim can be filed in proceedings already struck out
  2. 2 Whether the Registrar should accept and file the amended statement of claim
  3. 3 Effect of a pending but unprogressed appeal on the finality of the strike-out order

Ratio Decidendi

Because the original statement of claim had been struck out by the Court and that decision remained extant pending any successful appeal, there was no live proceeding in which an amended statement of claim could be filed; accordingly the Registrar was directed to return the amended statement of claim and any party wishing to proceed must commence fresh proceedings through solicitors and comply with filing fee or waiver requirements.

Court Disposition

Amended statement of claim dated 31 October 2020 ordered returned to Optimizer; original proceedings are at an end; plaintiff or any assignee must commence fresh proceedings if it wishes to proceed.

Orders

  • Registrar to return the amended statement of claim dated 31 October 2020 to Optimizer
  • If Optimizer or any assignee wishes to proceed, commence fresh proceedings through a solicitor and either pay the appropriate filing fee or seek a fee waiver