H Investments Limited (in liquidation) v Official Assignee [2017] NZCA 353 (16 August 2017)

Last Updated: 24 August 2017

IN THE COURT OF APPEAL OF NEW ZEALAND
CA319/2017 [2017] NZCA 353
BETWEEN	H INVESTMENTS LIMITED (IN LIQUIDATION) Appellant
AND	OFFICIAL ASSIGNEE Respondent

Counsel:	M D Branch for Appellant P V Cornegé for Respondent
Judgment: (On the papers)	16 August 2017 at 3.00 pm

JUDGMENT OF MILLER J
(Review of Registrar’s Decision)

The application for review is declined.
____________________________________________________________________

REASONS

[1] This judgment responds to an application for review of a Registrar’s decision to decline to waive a filing fee for this appeal.
[2] The appellant company is in liquidation, but the proceeding is not brought by the liquidators in their own names. They have chosen rather to bring the proceeding in the name of the company. The Deputy Registrar’s reason for refusing the application for waiver was that liquidators should be personally liable for the payment of fees. He accepted that the appellant does not have readily available assets.
[3] The application for review is brought on the ground that the liquidators should not be required to fund the filing fee, so incurring a liability for a debt of the company. The liquidators say that it is in the best interest of the creditors to challenge the decision of the Official Assignee that is the subject of the judgment under appeal. The liquidators believe they have a claim against the company’s director. The director is bankrupt, and the Official Assignee rejected the liquidators’ claim. In the High Court Associate Judge Sargisson dismissed an application for an order that the Assignee be required to accept the liquidators’ proof of debt.^[1]
[4] I accept that the Deputy Registrar was wrong insofar as he reasoned that the liquidators are personally liable to pay filing fees. They are liable where proceedings are brought in their own names, but not where proceedings are brought in the name of the company in liquidation. This Court has accepted in the past that companies may apply for a waiver of a filing fee.^[2]
[5] However, it does not follow that a waiver ought to be granted where the company is in liquidation, even if the company has no readily available assets with which to pay. The liquidators do have the option of paying the fee themselves, in which case the payment will form part of their expenses in the liquidation, or asking the creditors of the company to fund the payment. There is no reason why the state should effectively subsidise resolution of this dispute by waiving filing fees.
[6] The application for review is declined.

Solicitors:
Harkness Henry, Hamilton for Appellant

---

^[1] H Investments Ltd v Official Assignee [2017] NZHC 996.

^[2] Re Wiseline Corporation Ltd (2002) 16 PRNZ 347 (CA) at [22].