CSUM 20/09
Issued
10 Aug 2020
Decision
31 Jul 2020
Court
NZHC
Appeal Status
Not appealed

Two appeals against the Registrar of Companies decision to decline public notice under s 328(3) of the Companies Act 1993

Marketing Agencies Limited (“MAL”) and Mountforts Pharmacy Limited (“MPL”) (collectively, the companies) were removed from the New Zealand register (“the register”), in 1998 and 2011 respectively. However, the companies were restored to that register by this Court, pursuant to s 328 of the Companies Act 1993 (“the Act”) on 21 September 2018 (“the restoration”), Commercial Management Ltd v Commissioner of Inland Revenue (2018) NZHC 224, (2018) 29 NZTC 23-068.  While restored, the companies commenced legal proceedings in the Taxation Review Authority (“the Authority”). Thirteen months later, the Court of Appeal set that order aside, Commissioner of Inland Revenue v Commercial Management Ltd [2019] NZCA 479.

The appellants then applied to the Registrar, pursuant to s 328(1)(b) of the Act, to have the companies restored again because they were in legal proceedings at the time the Registrar removed all record of the High Court restoration. The Registrar refused to restore and notify their application because the qualifying criteria for notification were not met. This was an appeal against the Registrar’s refusal to restore the companies.

The High Court dismissed these appeals. Whata J was satisfied that the refusal to notify the applications was lawful. He further noted that while the Registrar was wrong to delete all reference to the High Court restoration order, there is no proper basis upon which the companies may use the s 328 process to achieve restoration. The attempt to do so was a collateral attack on the judgment of the Court of Appeal.

Tax Information Bulletin Vol 32 No 8 - September 2020

Case
Commercial Management Limited v Commissioner of Inland Revenue [2020] NZHC 1873 [31 July 2020]

s 328 of the Companies Act 1993