Worksafe New Zealand v Registrar of Companies

[2015] NZHC 2350

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-4042112 [2015] NZHC 2350

UNDER	Section 329 of the Companies Act 1993
IN THE MATTER	of an application to restore HAWKE EQUIPMENT LIMITED (struck off) to the Companies Registrar
BETWEEN	WORKSAFE NEW ZEALAND Applicant
AND	REGISTRAR OF COMPANIES First Respondent

Hearing:	25 September 2015
Appearances:	Mr R S May for the applicant No appearance for other parties.
Judgment:	25 September 2015

ORAL JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE

WORKSAFE NEW ZEALAND v REGISTRAR OF COMPANIES [2015] NZHC 2350 [25 September 2015]

[1]      The applicant has sought leave to commence this proceeding for restoration of a company by means  of an  originating application.    I am  satisfied  that  this proceeding, that is for restoration of the company, is one which is suitable to be dealt with by way of an originating application.

[2]      The substantive application seeks restoration of Hawke Equipment Limited pursuant to s 329 of the Companies Act 1993.  Proof of service on all parties with a legitimate interest in the matter has been provided.

[3]      A third party has communicated with the applicant through his counsel that correspondence has been directed to the Court.  Specifically, Mr P White a barrister who  is  apparently representing  a  Mr  Beau  Thompson  has  made  representations concerning the propriety or otherwise of the company being restored to the Register.

[4]      It is necessary to make brief mention of the background.   The company together with Mr Beau Thompson had been charged in relation to the death of an employee at work.  Those charges were made on 12 August 2014.  On 15 June 2015 the company was struck off for failing to file a return.  The fact that the company had been struck off came to the attention of Worksafe New Zealand which is the prosecuting agency in the criminal charges, in July of 2015.   It then made this application.

[5]      Worksafe New Zealand is anxious to have the company restored so that no obstacle is presented to the criminal proceedings going ahead in the District Court at Gisborne on 14 October 2015.

[6]      Mr Beau Thompson has through his counsel raised general considerations about the utility of restoring the company to the company’s register.  The first point is whether Mr Beau Thompson has standing to make representations of this kind and I  am  not  satisfied  that  he  has.    He  does  have  an  indirect  association  with  the company and the sense that he is himself a director of a company that holds a charge over the struck off company.   It is not in that character that his counsel has made

representations about the striking off of the company.  In any event I do not consider that would give him standing to make representations other than as a director acting for the chargeholder.

[7]      It is in my view consistent with principle that restoring a company to the register so that it is available meet criminal charges against it is a legitimate purpose for restoring a company.   Even if it were legitimate to go into the matters that Mr Paul White has submitted to the contrary, I do not consider that his submissions are correct.  It is not possible or appropriate for a Court hearing an application for restoration to come to conclusions on the main point that Mr White raises, which is that the company is allegedly a financial shell and that no financial benefit would follow from it being restored to the Register.  That, as Mr May has submitted, is a question that will only arise if and when the point is reached where sentencing takes place in the criminal proceedings.   There is nothing else that has been raised by Mr White which seems to be relevant to the question of whether or not the company is restored.

[8]      I am satisfied that an order ought to be made in terms of the application and accordingly  there  will  be  orders  in  terms  of  the  application  restoring  Hawke

Equipment Limited to the Register of Companies.

J.P. Doogue

Associate Judge