SUPERFURN (NEW ZEALAND) LIMITED V ASHLEY FURNITURE INDUSTRIES INC HC AK CIV2009-404-2472
The respondent certified the debt remained unpaid, establishing insolvency; applying s291(1)(b) and s241(4) of the Companies Act 1993 the court ordered the company into liquidation, appointed liquidators requested by the respondent, and held the shareholders' special resolution invalid for noncompliance with...
Source-derived case information.
- Citation
- openlaw-481d3c36_7786_4677_a475_768781d0001f.pdf
- Parties
- Applicant: SUPERFURN (NEW ZEALAND) LIMITED; Respondent: ASHLEY FURNITURE INDUSTRIES INC
- Court
- High Court
- Jurisdiction
- New Zealand
- Judgment Date
- 9 September 2009
- Procedural Posture
- Companies Act 1993 Statutory Demand / Liquidation / Final Judgment (liquidation Ordered)
- Outcome
- Liquidation ordered; liquidators appointed; costs awarded; shareholders' resolution invalidated.
- Legal Topics
- Statutory Demand, Liquidation, Winding Up, Costs
Source-derived case record
Summary, issues, holding and outcome
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Parties
SUPERFURN (NEW ZEALAND) LIMITED
Applicant
ASHLEY FURNITURE INDUSTRIES INC
Respondent
Procedural Posture
Companies Act 1993 Statutory Demand / Liquidation / Final Judgment (liquidation Ordered)
Legal Issues
- 1 Whether the statutory demand should be set aside
- 2 Whether the company is insolvent and subject to liquidation
- 3 Validity of shareholders' special resolution to wind up under s241(2)(a)
Ratio Decidendi
The respondent certified the debt remained unpaid, establishing insolvency; applying s291(1)(b) and s241(4) of the Companies Act 1993 the court ordered the company into liquidation, appointed liquidators requested by the respondent, and held the shareholders' special resolution invalid for noncompliance with s241(2)(a).
Court Disposition
Liquidation ordered; liquidators appointed; costs awarded; shareholders' resolution invalidated.
Orders
- Order placing SUPERFURN (NEW ZEALAND) LIMITED into liquidation under Companies Act 1993 s291(1)(b) and s241(4)
- Appointment of Damien Grant and Steven Koh as liquidators at the request of the respondent
Full Case Text
Judgment text and source record
1 paragraphs
SUPERFURN (NEW ZEALAND) LIMITED V ASHLEY FURNITURE INDUSTRIES INC HC AK CIV2009- 404-2472 9 September 2009IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV2009-404-2472UNDER the Companies Act 1993 IN THE MATTER OF of a statutory demand dated 15 April 2009 BETWEEN SUPERFURN (NEW ZEALAND) LIMITED Applicant AND ASHLEY FURNITURE INDUSTRIES INC Respondent Hearing: 9 September 2009 Counsel: V Fletcher for Applicant N Tetzlaff for Respondent Judgment: 9 September 2009 at 4.30 pmRESERVED FINAL JUDGEMENT OF ASSOCIATE JUDGE H SARGISSON (Application for setting aside Statutory Demand)This judgment was delivered by me on 9 September 2009 at 4.30 pm pursuant to Rule 11.5 of the High Court Rules Registrar/Deputy Registrar Date .......................... Solicitors: Blackwells, PO Box 9325, Newmarket, Auckland Gaze Burt, PO Box 91345, Auckland[1] I issued an interim judgment on 7 September 2009 and directed that this proceeding be re-listed today at 2.15 pm. I indicated an order for liquidation would be made today if the debt was not paid. [2] The respondent has certified that the entire amount of the debt remains outstanding. It is clear therefore that the applicant company is insolvent. [3] Accordingly under s 291(1)(b) and s 241(4) of the Companies Act 1993 I make an order placing the applicant into liquidation. I appoint as liquidators Damien Grant and Steven Koh, at the request of the respondent. I also make a costs order in favour of the respondent on a 2B basis plus disbursements to be fixed by the Registrar. These orders are timed at 2.35 pm on 9 September 2009. [4] In making the above orders, I decline to act on the shareholders' special resolution to wind up the company. That resolution does not comply with s 241(2)(a) of the Act and it is invalid. ___________________________ Associate Judge Sargisson