15 Hopetoun Limited v Visser
[2018] NZHC 220
•22 February 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KOTI MATUA O AOTEAROA TAMAKI MAKAURAU ROHE
CIV-2017-404-2633
[2018] NZHC 220
BETWEEN 15 HOPETOUN LIMITED
Applicant
AND
FREDERICK VISSER
Respondent
Hearing: 30 January 2018 (on papers) Appearances:
R Butler for Applicant
J J K Spring for Respondent
Judgment:
22 February 2018
JUDGMENT OF ASSOCIATE JUDGE CHRISTIANSEN
This judgment was delivered by me on
22.02.18 at 4.30 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
15 HOPETOUN LIMITED v FREDERICK VISSER [2018] NZHC 220 [22 February 2018]
[1] Issues of costs arise as a result of the applicant successfully applying to set aside the respondent’s statutory demand.
[2] The statutory demand had been served following entry of judgment against the applicant in the District Court for a sum of $45,199.30. The respondent’s application for summary judgment had been opposed in the District Court.
[3] Two days after that judgment the respondent’s solicitors demanded payment of the judgment sum within two days. Two days thereafter the respondent issued a statutory demand seeking payment of the judgment sum. An application to set aside the demand was filed and served and at the same time an appeal against the District Court judgment was lodged.
[4]The respondent took no steps to oppose the setting aside application.
[5] In the Court’s view the solicitors letter of demand and the issue of the statutory demand occurred at a time when the respondent did not have reasonable cause to believe the applicant was insolvent. The respondent’s actions were therefore pre- emptive. His decision not to oppose the setting aside application was appropriate but does not vindicate the actions earlier taken.
[6] 2B costs should be payable by the respondent but in the amount calculated by counsel for the respondent namely $4,460.
Associate Judge Christiansen
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