Struck-off company has no rights
2005 case note – struck-off company has no existing rights and the prospect of future restoration is irrelevant to present status.
Companies Act 1995, Companies Act 1993
Summary
A struck-off company has no existing rights and the prospect of future restoration is irrelevant to their present status. Attempts to assignment of objection rights are ineffective.
Facts
This is a Russell-related matter.
Five taxpayer companies which are party to Russell litigation have been struck off the Companies Register under either the 1955 or the 1993 Companies Act. These have not been restored to the Register but proceedings are in train to apply for these to be restored. In the meantime the companies purported to assign their objection rights to another Russell company.
The Commissioner sought to strike them out of the tax proceedings on the basis that these companies have no standing.
Decision
Courtney J considered the facts of each case are agreed the companies were properly struck off the register under the various Acts.
Her Honour accepted the Commissioner's submission that the deeds of assignment were ineffective relying upon Suzy Speed (1994) 16 NZTC 11,108. [19]
If the companies are restored the deeds would be irrelevant anyway. [20]
As to the removal from the register, Her Honour reviewed the legislation and said:
"Removal from the register finally extinguishes any legal status. The fact that a company may later be restored and be deemed at that point to have always remained on the register does not alter the fact that at the moment it is removed it ceases to have any legal status." [26]
For present purposes I do not see any difference between the provisions of the Companies Act 1955 in its pre-1 July 1994 form and the Companies Act 1993. In my view removal of a company from the register under both Acts has the same effect, namely that the company ceases to exist for all relevant legal purposes. I do not see any basis for resisting the obvious effect that removal of a company from the register has. That effect cannot be denied simply because the company concerned may one day to restored to the register." [29]
However Her Honour did not accept the Commissioner's submission that this mean the taxpayer companies must be struck out as Her Honour considered whether to strike them out was at her discretion. [30-31]
Her Honour ordered that if the Companies did not get an order restoring them to the register before 1 December 2005, then there would be an automatic strike-out of the proceedings. [34]