Albacore Fisheries Limited v Sunsai Limited

[2013] NZHC 1124

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2010-485-2395 [2013] NZHC 1124

BETWEEN  ALBACORE FISHERIES LIMITED Applicant

ANDSUNSAI LIMITED Respondent

Hearing:         On papers

Counsel:         K Smith for Applicant

No appearance for Respondent
R Gordon for Ian Pharaoh

Judgment:      17 May 2013

In accordance with r 11.5, I direct the Registrar to endorse this judgment with the delivery time of 10.30am on the 17th May 2013.

JUDGMENT OF WILLIAMS J (COSTS)

[1]      On  10  February  2012,  I  made  an  order  restoring  Sunsai  Limited  to  the register of companies to allow Albacore Fisheries Limited to pursue it in respect of a dispute  over  defective  product  that  it  purchased.    I  understand  that  Albacore Fisheries Limited has taken no steps in that respect in the interim.

[2]      Meanwhile however,  Mr Gartrell, has  applied  for costs in respect of his successful application.  His application is sparse to say the least.

[3]      In rejoinder, Mr Gordon for Mr Ian Pharaoh (a non-party but former director of Sunsai Limited), submits that Sunsai Limited has now been put into voluntary liquidation.  The effect of that is that s 248(1)(c)(i) is engaged.  This provides that no

person may commence or continue legal proceedings against Sunsai Limited or in

ALBACORE FISHERIES LIMITED V SUNSAI LIMITED HC WN CIV-2010-485-2395 [17 May 2013]

relation to its property unless the company’s liquidator agrees or this court orders

otherwise.

[4]      That presents a significant obstacle for Mr Gartrell.   Clearly applying for costs in a successful application amounts to continuing legal proceedings against the company or in relation to its property.

[5]      Although presented with this significant obstacle, it appears that Mr Gartrell has gone to ground.

[6]      I issued a minute on 29 April 2013 asking Mr Gartrell for any submissions on these points by 3 May 2013.  He requested an extension until 6 May which I granted. That date has come and gone without further response.

[7]      I am satisfied therefore that no award of costs should be made.  I see no basis upon which I would make such an order in this case.

[8]      The applicant has taken no steps since the original order was  made and counsel has not seen fit to make submissions to the court on the question.

[9]      The application for costs is dismissed accordingly.

Williams J