With the benefit of hindsight it was not a good idea using their Australian company to buy a New Zealand property. After splitting up, Warwick Mortyne and Tracey Ruke are having trouble selling their Ahipara home as part of a relationship property settlement because it is owned by an Australian company that no longer exists. Moana Supertee Pty Ltd has been struck off the Australian register
The High Court was told the couple set up Moana Supertee while living in Queensland, to hold property investments. They were joint directors and joint shareholders. In 2011, they purchased a site on Poseidon Way in Ahipara, Northland, later moving a relocatable house onto the site and shifting from Australia to live there. Title to the section was put in the name of Moana Supertee. They put their own money into moving a house on to the property and lived on site rent free, but paid all outgoings. The fact the company owning the site was at law a separate legal person from themselves only became clear when their marriage came to an end in 2013. Intentions to sell Poseidon Way and divide the proceeds foundered when it was realised Moana Supertee could not sign any legal documents; it no longer existed having been struck off the Australian companies register as an inactive company.
Under New Zealand law, the High Court has power to reinstate struck-off companies. But these rules do not apply to foreign companies like Moana Supertee owning property in New Zealand. If a New Zealand registered struck-off company owns land, this land reverts to the Crown under the old feudal concept of escheat. Again, this does not apply to foreign companies owning land in New Zealand. Government lawyers in Wellington said: nothing to do with us, contact Australia.
The High Court at Whangarei was told similar escheat rules apply in Australia for land held by struck-off companies. The ownerless land vests in either the Australian Securities Investment Commission (ASIC) or the Australian federal government. Lawyers for Mr Mortyne and Ms Ruke had written to ASIC who replied reinstatement required the former directors to be living in Australia. But the New Zealand courts could transfer the land to Moana Supertee’s former director/shareholders if it wanted, ASIC said. Faced with ASIC’s response, Justice van Bohemen in the New Zealand High Court said he had no power to do so. New Zealand company law does not allow such a transfer in respect of foreign-registered companies. Neither does trust law; Moana Supertee as the supposed trustee no longer exists. Mr Mortyne and Ms Ruke have to work through the Australian legal system and its Corporations Act to unravel their problem.
Mortyne & Ruke v. Moana Supertee Pty Ltd – High Court (16.10.18)
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