Bartercard Exchange Limited v De Vries - [2018] NZHC 2500

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2016-485-0428

[2018] NZHC 2500

UNDER the Insolvency Act 2006

IN THE MATTER

of the bankruptcy of Anthony Harry de Vries

BETWEEN

BARTERCARD EXCHANGE LIMITED

Judgment Creditor

AND

ANTHONY HARRY DE VRIES

Judgment Debtor

Hearing: On the papers

Appearances:

D G Dewar and M W Anderson for the Judgment Creditor Mr de Vries in person

Judgment:

24 September 2018

COSTS JUDGMENT OF ASSOCIATE JUDGE SMITH

This judgment was delivered by me on 24 September 2018 at 4.15pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors / Counsel:
Thomas Dewar Sziranyi Letts, Wellington

Copy to:
A H de Vries

BARTERCARD EXCHANGE LTD v DE VRIES [2018] NZHC 2500 [24 September 2018]

[1] On 30 April 2018 I made an order adjudicating Mr de Vries bankrupt. I directed that the judgment creditor (Bartercard) was entitled to costs. Those costs were to be on a 2B basis, together with disbursements, unless Bartercard filed a memorandum seeking increased costs within 15 working days. Mr de Vries was allowed 15 working days from the date of service of any costs memorandum filed by Bartercard, to file his own costs memorandum.

[2] Bartercard duly filed a costs memorandum, in which it sought costs not only in this proceeding, but also a District Court proceeding and an appeal from the District Court proceeding. By minute dated 6 June 2018, Associate Judge Johnston directed that costs in the three proceedings would be dealt with separately, and that I would give judgment for costs in this proceeding.

The background to the adjudication proceeding

[3] The background is fully set out in my judgment of 30 April 2018 adjudicating Mr de Vries bankrupt ("the adjudication judgment"),1 and in three other judgments I have given. First, I gave judgment in April 2016 dismissing Bartercard's first application for an adjudication order ("the April 2016 judgment").2 Secondly, in November 2016 I dismissed an application by Mr de Vries to set aside a second bankruptcy notice issued by Bartercard ("the November 2016 judgment").3 In December 2016 Bartercard filed a second application for adjudication. Mr de Vries applied for an order that I recuse myself in that proceeding, and that application was refused in a judgment given on 4 August 2017 ("the recusal judgment").4

Bartercard's submissions

[4] Bartercard asks for costs on scale 2C for the particular steps in the proceeding identified in Schedule 3 to the High Court Rules, together with additional costs for multiple steps it was required to take that are not specifically referred to in Schedule 3.

1      Bartercard Exchange Ltd v de Vries [2018] NZHC 854.
2      Bartercard Exchange Ltd, ex parte de Vries [2016] NZHC 703.
3      de Vries v Bartercard Exchange Ltd [2016] NZHC 287.
4      Re de Vries, ex parte Bartercard Exchange Ltd [2017] NZHC 1851.

[5] Mr Dewar and Mr Anderson submit that the Court has only to look at the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] NZHC 2500
Decision Date: 24 September 2018

CaseChat Overview and Summary

The High Court of New Zealand considered a costs judgment in Bartercard Exchange Limited v De Vries. The case involved an adjudication of bankruptcy against Anthony Harry de Vries, with Bartercard Exchange Limited as the judgment creditor. Bartercard sought costs on a 2C basis for various steps in the proceeding, including multiple hearings, telephone conferences, and preparation time, asserting that the proceedings were unnecessarily protracted due to de Vries' actions. De Vries opposed the costs, arguing that the entire case was a miscarriage of justice and that Bartercard's claims were excessive and unethical.

The court reviewed the nature and extent of the proceedings, noting that while some steps might warrant a 2C assessment, the majority did not. The judge found that Bartercard was entitled to costs on a 2B basis for certain steps outlined in the High Court Rules, including filing and serving a bankruptcy notice, filing an application for adjudication, and attending hearings. Additional costs were granted for time spent reviewing de Vries' voluminous and repetitive filings, preparing for hearings, and participating in telephone conferences. The judge rejected de Vries' assertion that the hearings were unnecessary and noted that many adjournments were due to de Vries' own actions, such as pursuing appeals and filing last-minute interlocutory applications.

Ultimately, the court awarded Bartercard costs totaling $13,268.50 plus disbursements of $700. This decision was based on a detailed assessment of the time reasonably required for each step in the proceeding, considering the complexity and the need to review extensive documentation. The judge emphasized that the costs awarded should reflect the nature of the proceeding and be predictable and expeditious, aligning with the principles set out in the High Court Rules.

Orders