Bankruptcy of Kooiman v Commissioner of Inland Revenue HC Wellington CIV-2006-485-2074

[2007] NZHC 1746

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2006-485-2074
CIV-2006-485-2126
CIV-2006-485-2127

CIV-2006-485-2124

IN THE MATTER OF     The Insolvency Act 1967

AND IN THE MATTER OF  The Companies Act 1993

BETWEEN  THE BANKRUPTCY OF MICHAEL EDWIN KOOIMAN

Judgment Debtor

ANDTHE COMMISSIONER OF INLAND REVENUE

Judgment Creditor

AND

BETWEEN  THE COMMISSIONER OF INLAND REVENUE

Plaintiff

ANDCAPRICE ACQUISITIONS LIMITED UNDERGROUND CONSTRUCTION LIMITED

Defendants

Hearing:         23 May 2007

Appearances: L. Ord for Judgment Debtor and Defendants

P. Latimer for Judgment Creditor and Plaintiff

Judgment:      23 May 2007

ORAL JUDGMENT OF ASSOCIATE JUDGE D.I. GENDALL

[1]      Applications by the judgment debtor and plaintiffs in the above cases to set aside statutory demands, and in the case of Mr Kooiman, a bankruptcy notice, were

due for hearing before me today, 23 May 2007 at 10.00am.

THE BANKRUPTCY OF MICHAEL EDWIN KOOIMAN AND ANOR V THE COMMISSIONER OF INLAND REVENUE AND ORS HC WN CIV-2006-485-2074  23 May 2007

[2]      Counsel  for  the  judgment  debtor  and  defendant  in  each  case,  Ms  Ord, indicated today that following lengthy discussions between the parties and staff of the Inland Revenue Department, a decision has been taken that these applications are to be withdrawn.  Leave for this purpose is sought.

[3]      As I understand the position, in so far as Caprice Acquisitions Limited is concerned, the debt in question has now been met following payments received by the Commissioner pursuant to s157 Tax Administration Act deductions which were required.

[4]      So far as the debts due from Underground Construction Limited and Mr Kooiman personally are concerned, counsel indicate that over the next two or three weeks continuing discussions are to take place which hopefully will determine the proper amounts due from these individual debtors, and payment arrangements presumably can be made.

[5]      On this basis, leave to withdraw each of the applications to set aside the statutory demands and the bankruptcy notice is granted.

[6]      Counsel for the Commissioner of Inland Revenue, Mr Latimer, indicated today  that  the  Commissioner  was  seeking  costs  with  respect  to  each  of  the withdrawn applications.

[7]      Ms  Ord  for  the  companies  and  Mr  Kooiman  indicated  that  costs  were opposed.   As I understand the position, her suggestion was that costs might be simply reserved at this time, which presumably would then provide some basis for the ensuing settlement discussions which are likely to take place in the next two or three weeks.

[8]      Whilst I understand the sentiment behind Ms Ord’s suggestion, this is a situation where the companies and Mr Kooiman have effectively discontinued the interlocutory applications which they had brought before the Court.  That said, the normal situation which would usually apply here is that the Commissioner would be entitled to costs in terms of r476C the High Court Rules.

[9]      I see no reason why that usual arrangement should not apply here.

[10]   The Commissioner was required to file oppositions to the interlocutory applications brought by the companies and Mr Kooiman and in each case to pursue those oppositions up to the present time.

[11]     Accordingly, the Commissioner is entitled to an award of costs in respect of these matters.

[12]     Costs are therefore awarded to the Commissioner of Inland Revenue against Caprice Acquisitions Limited, Michael Edwin Kooiman and Underground Construction Limited with respect to the applications which are before the Court calculated on a category 2B basis, together with disbursements as fixed by the Registrar.

‘Associate Judge D.I. Gendall’

Solicitors:

Sladden Cochrane & Co, Wellington for Judgment Debtor and Defendants

Inland Revenue Department, Wellington for Judgment Creditor and Plaintiff