Vine-Tech Contracting Limited v South River Limited

[2016] NZHC 420

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CIV-2016-412-000030 [2016] NZHC 420

BETWEEN

VINE-TECH CONTRACTING LIMITED

Plaintiff

AND

SOUTH RIVER LIMITED Defendant

Appearances:

N Graham for Plaintiff

No appearance for Defendant

Ruling:

11 March 2016

(Determined on the papers)

RULING OF ASSOCIATE JUDGE OSBORNE

as to proper registry

[1]      Documents which an intending plaintiff (Vine-tech) has submitted for filing in the Dunedin Registry give rise to an issue as to the proper registry for the intended proceeding.

The intended proceeding

[2]      Vine-tech claims to be a creditor of the intended defendant (South River). [3]           South River has its registered office at Albany.

[4]      Vine-tech served a notice under s 289 of the Companies Act 1993 upon South

River in December 2015.  In the intended proceeding, Vine-tech would seek an order placing South River in liquidation.

VINE-TECH CONTRACTING LIMITED v SOUTH RIVER LIMITED [2016] NZHC 420 [11 March 2016]

The Registry

[5]      Vine-tech’s solicitors sought to file the documents in the intended proceeding

(the documents) in the Dunedin Registry.

[6]      They  did  so  upon  the  basis  that  South  River  operates  a  vineyard  at  its principal place of business in Tarras, Otago.

[7]      When the documents were received at the registry, the Deputy Registrar returned them to Vine-tech’s solicitors.   He explained that r 31.4(1) High Court Rules applies to the intended proceeding.  For Vine-tech, Mr Graham now requests that a Judge rule as to the registry in which the documents may be filed.

The High Court Rules

[8]      Part 31 of the High Court Rules deals with applications to the High Court to put companies into liquidation.1   The High Court Rules generally continue to apply to liquidation applications except to the extent that the general rules are modified by or inconsistent with Part 31.2

[9]      Rule 31.4 High Court Rules identifies the proper registry of the Court for the filing of a liquidation application.  It provides:

31.4     Proper registry of court

(1)       Despite rules 5.1(1)  to  (3) and 5.25, the proper registry of the court for the purposes of the filing of a statement of claim under rule 31.3 is—

(a)       the registry of the court in the town where, or the registry of the court in the town nearest to which, the defendant company's registered office is situated; or

(b)       if the defendant company does not have a registered office, the registry of the court in the town where, or the registry of the court in the town nearest to which, the defendant company's principal or last known place of business is or was situated.

(2)      This rule does not limit rule 5.1(4) and (5).

1      High Court Rules, r 31.1(1).

[10]     The effect of r 31.4 is clear.  Liquidation applications are to be filed in the registry  in  the  town  at  or  nearest  to  which  the  defendant’s  registered  office  is situated.

[11]     By the express  exclusion  of the operation  of rr  5.1(1) –  (3),  the  r 31.4 provisions displace the usual provisions as to proper registry which apply to other proceedings (and which are based on place of residence or principal place of business).

Application of rules in this case

[12]     The application of r 31.4 to this case is straightforward.  The registered office of South River is at Albany.   The registry of this Court at Auckland is, by the provisions  of  r  31.4,  the  proper  registry  for  the  purposes  of  the  liquidation application.   It is irrelevant that South River has its principal place of business in Otago.

Transfer to a different registry?

[13]     Faced with the Deputy Registrar’s decision, Mr Graham suggests that the Court might accept the documents for filing in the Dunedin Registry pursuant to r 5.1(5) High Court Rules.

[14]     Rule 5.1(5) has express application to liquidation proceedings.3

[15]     Rule 5.1(5) provides:

5.1      Identification of proper registry

…

(5)       If it appears to a Judge, on application made, that a different registry of the court would be more convenient to the parties, he or she may direct that the statement of claim or all documents be transferred to that registry and that registry becomes the proper registry.

[16]     Rule 5.1(5) cannot be applied in the present circumstances.  The rule assumes that a proceeding has been filed in its proper registry.  It permits transfer thereafter

on the basis of convenience to the parties.   It is a step which may be entertained when the proceeding has been commenced and the convenience of all parties can be considered.  It is not available to the plaintiff before the proceeding is commenced.

[17]     I refrain from expressing a concluded view as to the circumstances in which a change of registry would be ordered on a liquidation proceeding.   There are considerations in liquidation proceedings which go beyond the interests of the two entities which are the actual parties to the proceeding.   The right of creditors and other entities to enter appearances both in support and in opposition raise issues of access to the court for those other entities.  It may be anticipated that a transfer of registry for a liquidation proceeding is more likely to occur for the purposes of hearings rather than all documents on the file, so that (for instance) persons may continue to file documents in the court registry nearest to the company’s registered office.

[18]     In the event, these are matters for consideration at a later date should one or other of the parties pursue an order under r 5.1(5).

Have the documents been “filed”?

[19]     Mr Graham makes a final submission to the effect that the documents in the liquidation proceeding have already been filed because they were received by the Court with a cheque for the appropriate fee attached.   Mr Graham refers to the decision in Watson v Attorney-General.4

[20]     In Watson, one issue was whether the plaintiff had commenced an application for judicial review within three months of a decision of the Quota Appeal Authority delivered on 28 April 1993.   The evidence was that the plaintiff ’s judicial review documents had been lodged at the High Court Registry at Auckland on 28 July 1993

with the $100 filing fee also paid on that date.

4      Watson v Attorney-General HC Auckland M 1137/93, 29 November 2000.

[21]     The defendants argued that the documents had not been filed in the proper form until after the expiry of the three-month time limit because the Court had not signed the notice of proceeding until 2 August 1993.

[22]     Morris J held:

[17]     In my view, however, the fact the court did not sign the Notice of Proceeding until 2 August 1993 is irrelevant in determining the date at which the documents were lodged. It is very clear r 3 envisages as soon as the document(s) are received by the proper office of the court together with the appropriate fee they are lodged and proceedings are commenced. This procedure provides certainty.

[23]     The point raised by Mr Graham in this proceeding turns on the definition of

“to file” under r 1.3(1) High Court Rules.

[24]     Rule 1.3(1) provides:

1.3      Interpretation

(1)       In these rules, unless the context otherwise requires,—

to file, in relation to any document, means to lodge the document in the form required  by  these  rules  in,  or  to  send  it  by  post  or  electronically  in accordance with these rules to, the proper registry of the court, together with the fee (if any) payable for filing it

[25]     Mr Graham’s submission that Vine-tech’s documents have already been filed is  plainly  untenable  given  the  terms  of  the  definition.    The  documents  were submitted to the registry at Dunedin which, for the reasons I have found, is not the proper registry.  The decision in Watson v Attorney-General has no application – in that case the documents had been properly filed.

Impact of incorrect filing

[26]     I am aware from the correspondence between Mr Graham and the Deputy Registrar that, through the time taken over the attempted filing of Vine-tech’s documents, Vine-tech will no longer be able to rely upon the presumption of insolvency arising from its unmet statutory demand.  Vine-tech, if it wishes to rely on a statutory presumption of insolvency, will be faced with issuing a fresh statutory

demand.   The Court cannot alleviate that position.    The Deputy Registrar acted correctly in rejecting the documents.

Ruling

[27]     I direct that:

(a)      the statement of claim, notice of proceeding and associated affidavits in which Vine-tech Contracting Limited is identified as plaintiff and South River Limited identified as defendant, have not been filed in the High Court; and

(b)      the proper registry for such documents is the Auckland Registry.

Associate Judge Osborne

Solicitors:

Goldsmith Law, Dunedin

Counsel: A Pinnock, Barrister, Dunedin