BODY CORPORATE 383792 V SAUNDERS & DICKS INVESTMENTS LTD HC AK CIV-2009-404-002265 [2009] NZHC 633 (28 May 2009)

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
                                                              CIV-2009-404-002265

               UNDER                      the Companies Act 1993

               IN THE MATTER OF           an application to restore
Saunders & Dicks
                                          Investments Ltd to the register under s 329
                         
                Companies Act 1993

               BETWEEN                    BODY CORPORATE 383792
                            
             Plaintiff

               AND                        SAUNDERS & DICKS INVESTMENTS
                                 
        LTD
                                          Defendant


Hearing:       28 May 2009

Appearances: F Monteiro for Plaintiff
             No appearance for Defendant

Judgment:      28 May 2009


                       JUDGMENT OF WINKELMANN J




Wilson
Harle, PO Box 4539, Shortland Street, Auckland



BODY CORPORATE 383792 V SAUNDERS & DICKS INVESTMENTS LTD HC AK CIV-2009-404-002265
28 May 2009
[1]    This is an application for restoration of the defendant company to the register
of Companies brought for the
purpose of allowing the plaintiff to pursue its
application for liquidation of a company. As such, it is brought under s 329 of the
Companies Act, which provides in material part:

       (1)    The Court may, on the application of a person referred to in
    
         subsection (2) of this section, order that a company that has been
              removed from the New Zealand register be
restored to the register if
              it is satisfied that,­

              (a)    At the time the company was removed from the
register, ­

                     (i)      The company was still carrying on business or other
                              reason
existed for the company to continue in
                              existence; or

                      (ii)    The company was
a party to legal proceedings; or

                      (iii)   The company was in receivership, or liquidation, or
            
                 both; or

                      (iv)    The applicant was a creditor, or a shareholder, or a
                  
           person who had an undischarged claim against the
                              company; or

                      (v)
    The applicant believed that a right of action existed,
                              or intended to pursue a right of action,
on behalf of
                              the company under Part 9 of this Act; or

              (b)     For any other reason it
is just and equitable to restore the
                      company to the New Zealand register.

       (2)    The following persons
may make an application under subsection (1)
              of this section:

              (a)    Any person who, at the time the
company was removed from
                     the New Zealand register,­

                     (i)      Was a shareholder or director
of the company; or

                      (ii)    Was a creditor of the company; or

                      (iii)   Was a party to
any legal proceedings against the
                              company; or

                      (iv)    Had an undischarged claim
against the company; or

                      (v)     Was the liquidator, or a receiver of the property of,
                   
          the company:

              (b)     The Registrar:
               (c)     With the leave of the Court, any other person.

       ...

       (4)     The Court may give such directions or make such orders as may be
               necessary or desirable
for the purpose of placing the company and
               any other persons as nearly as possible in the same position as if the
               company had not been removed from the New Zealand register.

[2]    Evidence has been filed to confirm that the plaintiff
is an unpaid creditor of
the subject company, Saunders & Dicks Investments Limited. The defendant is the
owner of Unit PU305. That is a unit title property under the Unit Titles Act 1975
and in relation
to which the plaintiff Body Corporate has levied contributions, as it is
required to do. Saunders & Dicks failed to pay the levies
due. After several letters
of demand were served upon it, the plaintiff served a statutory demand on Saunders
& Dicks on 16 February
2009.          That    expired, unsatisfied, on 9 March 2009.
Unknown to the plaintiff, Saunders & Dicks was removed from the companies
Register on 25 February 2009.


[3]    Under the Companies Act, liquidation proceedings were required to be
commenced within 30 days
of the expiry of the statutory demand. Accordingly,
liquidation proceedings were commenced although they were commenced in respect
of a company which had been removed from the Register. These proceedings have
been brought at the same time to seek restoration of
the company so that the
liquidation proceedings can continue. The plaintiff has standing under s 329 to bring
this proceeding as
an unsatisfied creditor


[4]    The proceedings have been served on the Registrar of Companies, the
Secretary of the Treasury and
on Mr Padraic Edward Dicks and Ms Sherryl Ann
Christine Saunders-Dicks of Auckland. The latter two are the only shareholders and
directors of the defendant company.


[5]    The Registrar of Companies and the Secretary of the Treasury have
confirmed in correspondence
with the plaintiff that they do not oppose the present
application for restoration. No steps have been taken by the directors/shareholders.
[6]    The amount outstanding is the sum of $6315.00. If an order restoring the
company to the register is made, in terms of s 330
of the Companies Act the
company is deemed to have continued in existence as if it had not been removed
from the Register. That will
enable the liquidation proceedings to continue on as if
they had been validly issued against a company on the companies Register.


[7]    I am satisfied that the plaintiff has standing to bring this current proceeding
and that there is no opposition to the restoration
of the company. I am also satisfied
that, as was held in Clark v Libra Developments Ltd  [2007] NZLR 709, the effect of
the restoration will be that "The company and all those dealing with it during the
period of removal should not be
disadvantaged by its and their actions during the
period it was off the register".


[8]    I therefore make orders in terms of s
329 of the Companies Act that the
defendant company, Saunders & Dicks Investments Limited, be restored to the
Register.


[9]   
The plaintiff is entitled to costs of this application on a 2B basis.




                                                      
Winkelmann J