Tubbs v Registrar of Companies [2018] NZHC 2905 (8 November 2018)

Last Updated: 20 November 2018

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2018-409-000447 [2018] NZHC 2905

IN THE MATTER	of ORION INTERNATIONAL LTD (struck off) formerly a duly incorporated company
BETWEEN	STEPHEN JOHN TUBBS Applicant
AND	THE REGISTRAR OF COMPANIES First Respondent
AND	THE SECRETARY OF TREASURY Second Respondent
AND	GRAHAM ALEXANDER GALT Third Respondent

Hearing:	8 November 2018
Appearances:	J M Appleyard for Applicant
Judgment:	8 November 2018

JUDGMENT OF ASSOCIATE JUDGE OSBORNE

(restoration of company to Register)

The application

[1] Orion International Ltd (the Company), having previously been put into liquidation, was removed from the Register of Companies on 22 March 2013. The Christchurch City Council recently acquired land for the realignment of Halswell Junction Road. The Company has the benefit of a registered land covenant on the title to the Council’s land. If improvements are to be carried out thereon, the Council must obtain the Company’s consent.

TUBBS v THE REGISTRAR OF COMPANIES [2018] NZHC 2905 [8 November 2018]

[2] The former liquidator of the Company applies for orders:

(a) reversing the liquidator’s final report under s 284(1)(b) Companies Act 1993; and

(b) restoring the Company to the Register under s 329 Companies Act 1993.

[3] In an accompanying affidavit, the liquidator, Stephen Tubbs, explains that the advice received by the Council is that the simplest way forward is to obtain the requested orders. Thereupon the liquidator intends to consent to the carrying out of improvements on the Council’s land. (The land covenant required the Company to not unreasonably withhold its consent).

[4] The Registrar of Companies and the Secretary of Treasury each abide the Court’s decision.

[5] The known previous director of the Company (Graham Galt), although served with the proceeding, has taken no step. The applicant’s evidence filed indicates that the Company’s sole shareholder, Edward Robinson, has died.

Procedure

[6] The applicant seeks leave to commence his proceeding as an originating application under r 19.4 High Court Rules.

[7] Rule 19.4 permits a liquidator (amongst others) to seek court directions by originating application, as of right. The orders here sought (under ss 284(1)(b) and 329 Companies Act 1993) may not strictly fall within the concept of “directions” identified in r 19.4. It may also be that Mr Tubbs does not strictly qualify as a “liquidator” in terms of r 19.4. Equally, the two Companies Act provisions do not involve orders which must be made by originating application under r 19.2 High Court Rules.
[8] I am satisfied that it is in the interests of justice, under r 19.5(1), to permit the present application to be brought by originating application. An order is accordingly made below to that effect.

Reversal of the liquidator’s final report and restoration of the Company

[9] The jurisdictional appropriateness of the orders sought by the applicant was recognised by the Court of Appeal in Registrar of Companies v Body Corporate 307730.¹

Discussion

[10] Section 329(1)(b) of the Act empowers the Court to order restoration if satisfied that it would be just and equitable to do so. Mr Tubbs’ evidence satisfies this test. No-one will be adversely affected. The Council’s legitimate concern in the public interest will be advanced. A well-experienced liquidator is an appropriate person to deal with the consenting which will follow.

[11] With that decision made, the use of the power under s 284(1)(b) of the Act, to reverse the final report of the liquidator, can be seen in this case (as it was in Registrar of Companies v Body Corporate 307730) as simply a necessary step in realising the just outcome of restoring the company to the Register).²

Costs

[12] Ms Appleyard has indicated that the applicant does not seek an order for costs and disbursements.

Orders

[13] I order:

(a) This application may be brought as an originating application;

1. Registrar of Companies v Body Corporate 307730 [2013] NZCA 659, [2014] 2 NZLR 623, at [26].

² At [26].

(b) Under s 284(1)(b) Companies Act 1993, the liquidator’s final report on the liquidation of Orion International Ltd is reversed;

(c) Under s 329 Companies Act 1993, Orion International Ltd (in liq) is restored to the Register;

(d) There is no order as to costs and disbursements.

Associate Judge Osborne

Solicitors:

Chapman Tripp, Christchurch