Hottsie Anne Co Ltd v ANZ Bank [2009] TOSC 13; CV 179-2009 (28 August 2009)

IN THE SUPREME COURT OF TONGA
CIVIL JURISDICTION
NUKU’ALOFA REGISTRY

CV 179 of 2009

BETWEEN:

HOTTSIE ANNE CO. LTD
Plaintiff

AND:

1. ANZ Bank
2. ROB YEOMAN
3. TALANOA FUKA KITEKEI’AHO
4. SIAOSI MOALA
Defendants

BEFORE THE HON. JUSTICE ANDREW

Counsel: Mr. Corbett for the Plaintiff and Mr. Stephenson for Defendants

Dates of Hearing: 26 August, 2009
Date of Judgment: 28 August, 2009

JUDGMENT

[1] This is an application by the defendant for an order striking out the pleadings in this matter.

[2] The application raises one simple point, that being that the proceedings are brought by HOTTSIE ANNE COMPANY LIMITED as plaintiff when in fact the company was placed into liquidation by order of the Court dated 12 May 2009. The point is taken that when the liquidator of the Plaintiff company was appointed, the Directors and Secretaries of the Plaintiff company ceased to have the power to commence legal proceedings in the name of the Plaintiff company pursuant to S.257(1)(c) of the Companies Act 1995.

[3] I agree, that upon the appointment of a liquidator of a company that liquidator is the only person who can commence legal proceedings in the name of the company pursuant to S.269 and clause A of the 5th Schedule of the Companies Act.

[4] The liquidator has not commenced these proceedings and therefore the company has no standing to bring these proceedings in its own name against the Defendants.

[5] I do not think it is a defence to this argument to say that the name of the Plaintiff could be amended to say a Director of the Company. That would amount to an entirely different cause of action.

[6] The order I make is as follows:

1. The Statement of Claim in this matter is struck out.

2. Costs are awarded to the defendants as agreed or taxed.

NUKU'ALOFA: 28 August 2009

JUDGE