Allan v Pelf Limited HC Christchurch CIV 2009-409-2263

[2010] NZHC 1648

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2009-409-2263

BETWEEN  JOHN ALEXANDER MCDONALD ALLAN, JANICE MARGARET ALLAN AND ANTONY CHARLES VERNON BROWN

First Plaintiffs

ANDPETER FERGUS WING Second Plaintiff

ANDJEANNE ROBYN WING Third Plaintiff

ANDPELF LIMITED First Defendant

ANDALISTAIR KEITH WING Second Defendant

ANDAVETTE WING Third Defendant

Hearing:         25 February 2010

Appearances: Mr Rennie for Plaintiffs

Mr Smedley for Second and Third Defendants

Judgment:      1 September 2010 at 2.30 p.m

JUDGMENT OF ASSOCIATE JUDGE DOOGUE [on Costs]

This judgment was delivered by me on

01.09.10 at 2.30 pm, pursuant to

Rule 11.5  of the High Court Rules. Registrar/Deputy Registrar

Date……………

Counsel:

Rhodes & Co, Christchurch –[email protected]

Anthony Harper Lawyers, Christchurch – [email protected]

ALLAN & ORS V PELF LIMITED AND ORS HC CHCH CIV-2009-409-2263  1 September 2010

[1]      In the judgment which I issued on 22 March 2010 I declined to make the liquidation  order  which  the  plaintiffs’  sought  and  invited  counsel  to  make submissions on costs.  They have done so.

[2]      In the meantime it is gratifying to note that the parties have come to an agreement following mediation which provides for the business assets to be sold at a public auction.    The agreement included the following paragraph:

6.The above is agreed to be an interim solution and is entirely without prejudice to any existing rights.   The parties intend to resolve all issues between themselves as soon as reasonably practicable after the sale of business assets of Pelf.

[3]      There is no agreement that I am aware of that would displace the entitlement of either party to the proceeding before me to seek costs.

[4]      The defendants seeks costs.   In a submission that he filed on behalf of the plaintiffs Mr S P Rennie agreed that costs should be fixed on a 2B basis.  But he said:

2.Payments of costs is an issue which is agreed, pursuant to clause 6 of the Settlement Agreement, to be deferred until after the sale of the farm.

[5]      The following points are significant:

a)        Mr Rennie did not make any submission that costs should be payable to the plaintiffs;

b)        He did not make any submission as to who should pay costs;

[6]      In  a  memorandum  dated  15  June  2010  Mr  Rennie,  having  noted  that  a mediation was pending, submitted that a decision as to costs should be reserved until the outcome of the mediation was known.  He had in mind that if the mediation was unsuccessful and the plaintiffs were to return to Court there were matters affecting costs that counsel would wish to put before the Court.

[7]      The contingency stated in that memorandum has not occurred because the mediation was successful and in my view the point has been reached where the matter of costs needs to be dealt with.

[8]      The starting point is that r 14.2(a) is applicable and that the plaintiffs, who have failed in the proceeding, should pay costs to the party which succeeds.   While the  object  of  the  proceedings  was  to  obtain  a  liquidation  order  affecting  the company, the second and third defendants who opposed the making of the order were successful.  They should have costs.

[9]      There  is  agreement  that  costs  should  be  on  a  2B  basis  and  I  order accordingly.

[10]     The only remaining matter to be noted is that I agree with the defendants’

submission that they should have costs on their second memorandum dated 19 July

2010.   I also order that the defendants are to have costs on the preparation of the bundle for hearing.

J.P. Doogue

Associate Judge