PETITION REFUSED

Taranaki Daily News, 21 February 1935, Page 8

PETITION REFUSED

HAWERA THEATRE PROPERTY. COMPANY NOT TO BE WOUND UP. Petitioner having failed to establish a case for the winding-up by the Court “against the wishes of all the other members of the company,” Mr. Justice Smith, in a reserved judgment delivered at New Plymouth yesterday, found in favour of Taranaki Amusements (Hawera) Ltd., whose winding-up was sought by Peter Thomas Donnelly, stationer, Hawera. Petitioner was ordered to pay the company £lO 10s costs and disbursements fixed by the registrar. The hearing of the petition took place in the Supreme Court at New Plymouth on November 26. Donnelly, as a Suuypaid shareholder, sought an order winding up the company on the grounds that since 1928 it had failed to commence the business for which it was formed. It was contended that if a winding-up order wei'e made the assets, if prudently realised, would be sufficient to pay not only the debts of the company but also a substantial dividend. Donnelly considered that it was just and equitable to wind up the company. • The company was incorporated on February 22, 1928, with a nominal capital of £12,000, divided into 12,000 shares of £1 each. There were seven shareholders, the issued capital being £8604 and the paid-up capital £3526. The main object of the company was to acquire certain. land at Hawera from Donnelly and to build on it a cinema theatre. The price was £BOOO and it was satisfied by the company taking over the first mortgage of £4OOO, paying Donnelly £2OOO in cash and issuing him 2000 fullypaid shares of £1 each. For various reasons the company had not built its theatre. It leased the property to tenants and was at present nursing the property at a slight annual loss, estimated not to exceed £5O. There did not appear to be any prospect of Donnelly being made liable in respect of the mortgage and he had not urged the petition on that ground, said His Honour’s judgment. On the evidence the company had no present intention of building a theatre but His Honour was unable to say it had been proved that the company had a fixed intention of never building a theatre. If there were a substantial change in its circumstances it might do so. , On the other hand, the company s present intention was to hold the property for a time to try to effect a sale at a price that would enable it to clear its liabilities on the property and to return to its members at least a substantial part of the capital they had subscribed. Donnelly had not shown that, as a fully-paid shareholder, there would be any tangible surplus available for him in a winding-up. The judgment was read by Mr. H. Gilmore Smith. At the hearing of the petition Mr. R. J. O’Dea appeared for Donnelly, Mr.A. K. North for the company, and Mr. J. C. Nicholson for all the other shareholders opposed to the petition. GENERAL ITEMS. Motorist Remanded. On a charge of being intoxicated while in charge of a motor-car, Matthew Duggan, farmer, who was arrested in Nelson Street, Hawera, on Tuesday, was remanded by Mr. L. A. Bone, J.P., yesterday to appear before a magistrate at Hawera to-morrow. PORT OF PATEA. February 20: Sailed, m.v. Inaha. High water to-day, 12.33 a.m. and 1.3 p.m.