Calypso no.11 Limited v Fistonich

[2023] NZHC 1335

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-1315

[2023] NZHC 1335

UNDER

the Insolvency Act 2006

IN THE MATTER OF

the Bankruptcy of IAN GEORGE FISTONICH

BETWEEN

CALYPSO NO.11 LIMITED

and
PRAXIS LIMITED
Judgment Creditors

AND

IAN GEORGE FISTONICH

Judgment Debtor

CIV-2022-404-799

UNDER

the Insolvency Act 2006, Part 5 subpart 2

IN THE MATTER OF

an application for approval of a Proposal

IAN GEORGE FISTONICH

A Debtor

On the papers:	6 June 2023
Appearances:	Nicholas Coyle for the Judgment Debtor Alana Kalinowski for the Judgment Creditors Daniel Grove for the Supporting Creditors
Judgment:	6 June 2023

COSTS JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR

This judgment was delivered by me on 6 June 2023 at 3:00pm

pursuant to Rule 11.5 of the High Court Rules

………………………….

Registrar/Deputy Registrar

CALYPSO NO.11 LIMITED v IAN GEORGE FISTONICH [2023] NZHC 1335 [6 June 2023]

TABLE OF CONTENTS

Paragraph

Background  [1]

Costs relating to the Proposal  [6]

Background to approval of the Proposal  [6]

Mr Fistonich’s submissions  [10]

Premier LP and Foy & Halse’s submissions  [15]

Conclusion in relation to costs in respect of the Proposal                [16] Costs relating to the bankruptcy proceeding  [19] Mr Fistonich’s submissions  [19]

Mr Fistonich’s submissions

Bankruptcy costs included in the Proposal  [21]

Bankruptcy costs not payable until after Proposal is complete
if not included in Proposal  [24]

Calypso & Praxis’ submissions  [29]

Solicitor-client costs  [30]

Alternative 2B costs  [35]

Time-frame for payment  [38]

Conclusions in relation to the bankruptcy proceedings costs            [41]

Basis on which costs should be awarded  [41]

Timing of payment  [42]

Quantum of costs awards  [45]

Costs in relation to the Proposal  [45]

Costs in relation to the bankruptcy proceedings  [46]

Orders  [48]

–––––––––––––––––-

Background

[1]                 On 22 November 2021, Calypso No.11 Ltd and Praxis Limited (Calypso & Praxis) applied to adjudicate Mr Fistonich bankrupt (the bankruptcy proceedings).

[2]                 On 3 February 2023, the Court made orders approving Mr Fistonich’s proposal to his creditors (the Proposal) made under Part 5 subpart 2 of the Insolvency Act 2006 (the Act).

[3]                 At [69] of the judgment, costs were reserved and counsel were directed to endeavour to agree costs and if no agreement was reached, then to submit memoranda. Counsel have been unable to reach an agreement regarding costs and the following memoranda have been submitted in relation to the Proposal and in relation to the bankruptcy proceedings:

(a)by Mr Fistonich, memoranda dated 6 March 2023, 31 March 2023 (in reply to the judgment creditor’s memorandum of 27 March 2023), and 25 April 2023;

(b)by Calypso & Praxis, dated 27 March 2023 and dated 18 April 2023;

(c)by supporting creditors Premier Legal Finance Partnership and Foy & Halse, dated 6 April 2023.

[4]There are two separate issues requiring a determination of costs:

(a)costs relating to the Proposal; and

(b)costs relating to the bankruptcy proceedings.

[5]I deal with each of these in turn.

Costs relating to the Proposal

Background to approval of the Proposal

[6]                 On 10 June 2022, the provisional trustees named in the Proposal, Darren Nair and Heiko Draht, held a creditors’ meeting and a sufficient number of creditors voted to approve the Proposal. The provisional trustees rejected the claim for the sum of

$1,000,000 by Premier Legal Finance Limited Partnership (Premier LP), an entity associated with Graeme Halse of the firm Foy & Halse. The other rejected claim was filed by Foy & Halse for the sum of $20,000. After discussion between counsel for Premier Limited Partnership, Foy & Halse and Mr Fistonich, it was agreed that to allow Premier LP and Foy & Halse to dispense with a formal notice of an appeal against the rejection of the claims under Reg 32(1) of the Insolvency (Personal Insolvency) Regulations 2007 (the Regulations) to reduce the number of initiating documents which would need to be filed in relation to the Proposal.

[7]                 On 22 June 2022, the provisional trustees applied to the Court for approval of the Proposal (the application) and on 8 July 2022, Premier LP and Foy & Halse filed a notice of opposition to the application which raised a number of grounds on which the application was opposed, the first two grounds of which were:

(a)the provisions of Part 5 of the Act had not been complied with, in particular the provisional trustees wrongly rejected the claims filed by Premier LP; and

(b)that if Premier LP’s claim had been admitted the Proposal would not have required the required votes.

[8]                 On 25 July 2022, Mr Fistonich filed a reply to the opposition with a supporting affidavit.

[9]                 On 8 February 2023, the Court issued its decision which approved the Proposal and in the course of doing so rejected the challenge by Premier LP and Foy & Halse against the provisional trustee’s decision to decline Premier LP’s claim.

Mr Fistonich’s submissions

[10]            Mr Coyle, for Mr Fistonich, acknowledges that under r 14.2 of the High Court Rules 2016 the starting point for an award of costs is the presumption that the party who fails in respect of a proceeding, or an interlocutory application should pay the costs of the party who succeeds. However, he submits an order for costs, where a creditor unsuccessfully opposes a creditor’s proposal, can be on a different basis and submits the Court has consistently held the burden of costs of the provisional trustee falls on the opposing debtor and, where a creditor unsuccessfully opposes a creditor’s proposal, costs lie where they fall.1

[11]            Mr Coyle submits that an order for costs is discretionary and the practice outlined at [10] is not invariably followed. He relies on the Vegar decision where the Court held that an appeal under Reg 32(1) of the Regulations against a provisional trustee’s decision to reject the vote against a creditor’s proposal should not be treated in the same way. An appeal by a creditor against the decision by a provisional trustee stands to one side of the proposal in the approval process.

[12]            Mr Coyle refers to the Vegar decision in which, in addition to opposing the approval of the proposal, the two appellants attempted to pre-empt approval of the proposal by challenging the decisions of the provisional trustee which led to the proposal being endorsed by the necessary majority of creditors in the first place.    Mr Coyle submits that the Court held in effect that the appellants did not have standing to vote at the creditors’ meeting and under those circumstances Brewer J saw no reason why costs should not follow the event.2

[13]            Mr Coyle frames the issue for the Court to decide the present determination for costs is whether a creditor can avoid an adverse costs order simply by deciding to

1      Vegar v Aorangi Forest Ltd [2014] NZHC 2910 at [6].

2      Above n 1 at [12]-[13].

oppose the approval of a debtor’s proposal on the grounds that the subpart of the Act which prescribes the voting majority has not been complied with, rather than by exercising the right of appeal under Reg 32 against the decision of a provisional trustee to decline a claim. Mr Coyle submits that regardless of whether the challenge to a provisional trustee’s decision takes the form of an appeal under Reg 32 or a ground raised in opposition to a trustee’s application for approval proposal, the effect on the Court’s determination of costs should remain the same and follow the decision in Vegar. He submits that the outcome of the costs decision in Vegar would not have been different if the appellants had not filed appeals but instead had simply opposed the application for approval of the Vegars’ proposal on the same grounds.

[14]            Mr Coyle submits as the application was largely driven by Mr Fistonich and the Proposal was approved, he should be recognised as the successful party in the present litigation. He submits it should be recognised that Premier LP and Foy & Halse wrongly attempted to prevent the Proposal from being approved in the same manner as the two parties who were ordered to pay costs in Vegar did, and therefore the results should be the same.

Premier LP and Foy & Halse’s submissions

[15]            Mr Grove, for Premier LP and Foy & Halse submits the following in his memorandum dated 6 April 2023:

(a)Although the Proposal was ultimately accepted by the Court, this was done on the basis of a condition imposed on the basis of the opposition.

(b)It was necessary for an application for approval of the Proposal to be filed with the Court and the Court has an obligation to consider the views of opposing creditors.3

(c)The Proposal was approved but conditional on not being regarded as complete until Mr Fistonich has made available to creditors any net benefit obtained from the Foy & Halse litigation. This was an obvious

3      Insolvency Act 2006, s 333(2).

defect in the Proposal and was raised at the creditors’ meeting but was not rectified by Mr Fistonich.

(d)Accordingly, the opposition in this regard was validly made and the Proposal was not a straight success by Mr Fistonich and accordingly costs should lie where they fall.

Conclusion in relation to costs in respect of the Proposal

[16]            In my view, Mr Coyle’s submission that Premier LP and Foy & Halse are in a similar position to the appellants in the Vegar case is correct. Accordingly, that would lead to a decision that costs should be awarded against Premier LP and Foy & Halse in favour of Mr Fistonich.

[17]            However, some account should be taken of the fact that a condition was added into the Proposal as a result the opposition of Premier LP and Foy & Halse as submitted by Mr Grove in his memorandum. Given that any benefits which he obtained from the Foy & Halse litigation formed an important part of the Proposal, and the absence of any commitment to make any such benefits available to creditors was raised at the creditors’ meeting but not rectified, an allowance for costs should be made in this respect. In my view the costs award against Premier LP and Foy & Halse should be reduced by 15 per cent on account of this part of the opposition to the Proposal having been successful.

[18]            Accordingly,  I  make  an  award  of  the  quantum  of  costs  in  favour  of  Mr Fistonich jointly and severally against Premier LP and Foy & Halse of the amounts set out in the orders at the end of this judgment.

Costs relating to the bankruptcy proceeding

Mr Fistonich’s submissions

[19]            Mr Coyle acknowledges that Mr Fistonich accepts that he committed an act of bankruptcy and Calypso & Praxis had grounds to bring the application. Mr Coyle

submits in his memorandum of 6 March 2023 that Calypso & Praxis must elect between the two following options:

(a)they must apply to have their claim with the provisional trustees adjusted to include the costs the Court might award (which the Court should approve); or

(b)should they wish to recover the costs and disbursements other than through the Proposal, any order should become payable only at the time the Proposal is completed.

[20]            In his final memorandum dated 25 April 2023, Mr Coyle submits that no order for costs should be made in favour of Calypso & Praxis at all, relying on the decision of Associate Judge Smith in Powell v Forest Export Management.4

Mr Fistonich’s submissions

Bankruptcy costs included in the Proposal

[21]            Mr Coyle submits that any costs which Calypso & Praxis intended to recover from Mr Fistonich in respect of the bankruptcy application should have been included in the claim form filed with the provisional trustees.

[22]            Mr Coyle refers to Re St Laurence Lending Ltd ex parte Olliver5 where Associate Judge Faire addressed the issue of unpaid costs of a judgment creditor who filed and served a bankruptcy application prior to a judgment debtor making an application for approval of a proposal by adjusting the judgment creditor’s claims in the proposal. He notes in that case, the terms of the proposal itself provided for the costs of the bankruptcy proceedings to be addressed by way of adjustment. Mr Coyle also refers to the decision in Re Heslop.6

4      Powell v Forest Export Management [2015] NZHC 682 and [16] and [23].

5      St   Laurence   Lending   Limited   ex   parte   Olliver   HC   Auckland   CIV-2008-404-7417,   18 December 2009.

6      Re Heslop HC Christchurch B422/00, 5 July 2001, Master Venning (as he then was).

[23]            Mr Coyle submits that if Calypso & Praxis wished to apply to have any costs awarded to them included in the Proposal, then it should be approved, based on the approach taken by the Court in Re St Laurence Lending Limited. Mr Coyle submits that this would essentially be correcting an error and would have minimal overall impact on each creditor’s rights to share pari passu in any dividends and therefore it could be approved in the course of determining costs without any need to hear from other creditors. Mr Coyle has advised that Mr Fistonich understands the provisional trustees will endorse this approach.

Bankruptcy costs not payable until after Proposal is complete if not included in Proposal

[24]            Mr Coyle submits that if Calypso & Praxis do not elect to apply to vary the Proposal by having their claim with the provisional trustees adjusted to include any costs award, then the default position should be that any costs are not payable until the Proposal is completed.

[25]            Mr Coyle submits that s 41 of the Act applies where a debtor has made a proposal under Part 5 of the Act and under s 41(3) of the Act the Court is empowered to make any order as to costs as the Court thinks appropriate and this reinforces the Court’s discretion as to costs under Part 14 of the High Court Rules.

[26]            Mr Coyle relies on the decision in Southern Recon Ltd v Siryj7 as authority for the proposition that the bankruptcy proceedings costs are not dealt with by means of adjustment to Calypso & Praxis claim under the Proposal, then such costs should be payable only when the Proposal is completed. He submits that while the Southern Recon case involved the judgment debtor avoiding bankruptcy by means of a summary instalment plan, the position should be no different for Mr Fistonich who avoided bankruptcy by making a proposal under Part 5 of the Act.

[27]            Mr Coyle further submits in the present case that if the costs awarded against him become payable immediately, there will be a high risk that he will either be unable to pay them and/or comply with his obligation under the Proposal which might mean

7      Southern Recon Ltd v Siryj [2014] NZHC 1193.

that he either defaults under the Proposal (resulting in his bankruptcy) or faces further bankruptcy proceedings  from Calypso  & Praxis for failing to pay  a costs order.  Mr Coyle submits that such an outcome would be punitive to Mr Fistonich and not fair to the other creditors who would benefit under the Proposal.

[28]            Mr Coyle then makes a submission as to quantum of costs which should be ordered, which is dealt with in the orders at the end of this judgment.

Calypso & Praxis’ submissions

[29]            Ms Kalinowski for Calypso & Praxis submits that the judgment creditors should be awarded costs on a solicitor-client basis or, in the alternative, on a 2B basis.

Solicitor-client costs

[30]            Ms Kalinowski submits that under r 14.6(4) the Court may order a party to pay indemnity costs if the party claiming costs is entitled to indemnity costs under a contract or deed, and in this instance she submits the judgment creditor claims costs on a solicitor-client basis in reliance on the Deed of Lease.

[31]            Ms Kalinowski submits that costs and disbursements on a solicitor-client basis are appropriate, pursuant to the Deed of Lease which states (at cl 6.1) that:

6.1 The tenant shall pay … the Landlord’s legal costs (as between lawyer and client) of and incidental to the enforcement of the Landlord’s rights and remedies and powers under this Lease.

[32]            Ms Kalinowski relies on Mutual Finance Group Ltd v Duff8 where Associate Judge Gendall awarded solicitor-client costs to Mutual Finance Ltd on the basis that pursuing the judgment debtor to bankruptcy, enforcement of the loan arrangements and security provided were covered by the provisions in the loan agreement awarding costs on a solicitor-client basis. She submits that, similar to the Mutual Finance case, the Deed of Lease provides for costs on a solicitor-client basis and there can be no doubt the judgment creditors were put to significant trouble in pursuing the debt in an

8      Mutual Finance Group Ltd v Duff HC Napier CIV-2008-441-154 (2 April 2009).

adjudication proceeding including defending interlocutory applications in the District and High Courts and proceedings in the District Court.

[33]            In response to Ms Kalinowski’s submissions that Calypso & Praxis should be entitled to indemnity costs on a solicitor-client basis, Mr Coyle submits that the decision in Mutual Finance Group Ltd v Duff9 should not be relied on because:

(a)it overlooks the line of authorities regarding the doctrine of merger and its effect on contractual rights to indemnity costs; and

(b)does not appear to have considered the payment of costs could be ordered on a deferred basis.

[34]            Mr Coyle submits that under the doctrine of merger a contractual obligation to pay becomes merged in the judgment and accordingly the obligation to pay legal costs becomes merged in the judgment unless there is an explicit non-merger clause. He submits in the present case the Deed of Lease relied on by the judgment creditors does not explicitly state that any contractual rights to indemnity costs would survive a judgment being entered. Mr Coyle submits that in any event the Lease has been cancelled and accordingly any contractual right to indemnity costs is merged in the judgment obtained against Mr Fistonich or has otherwise been extinguished. He submits the judgment creditors were not enforcing their Deed of Lease by filing a creditor’s application, they were enforcing a District Court judgment.

Alternative 2B costs

[35]            Ms Kalinowski submits that, in the alternative, Calypso & Praxis claim costs on a 2B basis.

[36]Ms Kalinowski makes the following submissions:

9      Above, n 8.

(a)Calypso & Praxis proceeded properly in issuing a bankruptcy notice. When Mr Fistonich committed an act of bankruptcy, Calypso & Praxis had grounds to bring the application to adjudicate.

(b)Additional steps were required in order to serve the Bankruptcy Notice as Mr Fistonich was actively avoiding service. The minute of Associate Judge Andrew reserved costs and contemplated determination in the context of the adjudication proceedings.

(c)Although the application to adjudicate was not “successful” given the subsequent creditors’ Proposal put forward by Mr Fistonich, this does not alter the position that the adjudication proceedings were appropriate in the circumstances. Calypso & Praxis incurred costs in relation to the bankruptcy notice and proceedings, and Mr Fistonich should accordingly be ordered to pay costs in that regard.

(d)The steps taken by Calypso & Praxis in appearing at the hearings of the matter and filing memoranda in response to those filed by or on behalf of Mr Fistonich, were both reasonable and appropriate. The memoranda filed by Mr Fistonich provided new factual information, calculations and legal submissions which necessitated a response. After the second hearing in April the Court directed that further submissions should be filed as there was continually emerging information.

(e)Given the delay between 2 September 2020 when the bankruptcy notice was served and April 2022 when Mr Fistonich first raised the possibility of a creditors’ proposal, and the number of unsuccessful applications/proceedings brought by Mr Fistonich resulting in further debts during that time, Calypso & Praxis acted reasonably in seeking to have the bankruptcy application determined promptly to avoid risk and enhance the prospects of recovery.

[37]            Ms Kalinowski then referred to the procedural history of bankruptcy proceedings in her submissions from [32] to [45] and she sets out at [46] of her submissions the claimed costs on a 2B basis. The quantum of costs awarded on a 2B basis is dealt with at the end of this judgment.

Time-frame for payment

[38]            Ms Kalinowski submits that if costs are ordered in favour of Calypso & Praxis, then costs should be payable immediately and seeks to distinguish the Southern Recon decision relied upon by Mr Coyle for the proposition that if costs are ordered they should only be payable by Mr Fistonich when the Proposal is complete. She submits that the present facts are very different from the situation in Southern Recon, and that costs should be payable by Mr Fistonich immediately, for the following reasons:

(a)Calypso & Praxis’ debts accepted by the trustees amount to approximately $1,077,608;

(b)Mr Fistonich is litigious and is currently involved in separate High Court proceedings, which increases the risk to Calypso & Praxis of decreases the prospects of recovery. If he is unsuccessful in his separate High Court litigation (where the Court has assessed the strength of his claims as weak) he will likely accrue further costs orders against him and the creditors in that matter will be at liberty to pursue their costs order immediately while Calypso & Praxis would be disadvantaged by the delayed, and likely diminished ability, to recover their own order as to costs.

(c)Calypso & Praxis have already been prejudiced by the extensive delay in unmeritorious litigation against them which has significantly increased their costs.

(d)There is no evidence that an order as to costs would jeopardise the creditors’ Proposal and, on the contrary, Mr Fistonich is working and

earns a good salary (of $120,000 annually) and a large proportion of which is applied to his Zlato Trust loans (a non-creditor).

(e)Mr Fistonich has been able to raise significant funds, including to fund security for costs in the High Court litigation, and has financial backing from his family.

(f)The time-frame for completion of the Proposal is uncertain but presently at least five years.

(g)Mr Fistonich’s request that costs be payable after completion of the Proposal effectively seeks a stay of enforcement before any order as to costs has been made, and this is premature.

(h)Calypso & Praxis have at all times acted properly and reasonably in this matter and all substantive steps taken prior to the Proposal being accepted and approved, and were appropriate in the circumstances.

[39]            Mr Coyle, in his memorandum of 31 March 2023, submits that the Duff decision does not show that Associate Judge Gendall received submissions on or considered the issue of when the costs ordered should become payable and that the Judge appears to have made a standard costs order by default. Accordingly, he submits the decision has little or no authoritative value.

[40]            Mr Coyle concludes that it is not clear in the Duff judgment what His Honour’s expectations were regarding when and how costs would be paid or if this issue had even been considered.

Conclusions in relation to the bankruptcy proceedings costs Basis on which costs should be awarded

[41]            I am of the view that Calypso & Praxis should be awarded costs in respect of the bankruptcy proceedings on a 2B basis. The reasons for this are:

(a)I consider that the decision of Associate Judge Faire in Powell v Forest Export Management10 should not be followed in the present case as it would be unfair to Calypso & Praxis to deny any award of costs, notwithstanding Calypso & Praxis did not submit costs as part of their claim to the provisional trustees in respect of the Proposal. I accept Ms Kalinowski’s submissions that the steps taken by Calypso & Praxis to have Mr Fistonich adjudicated bankrupt were reasonable in the circumstances and Mr Fistonich should pay the costs of those proceedings.

(b)I reject Ms Kalinowski’s submission that costs should be awarded on an indemnity basis relying on the obligation in the Deed of Lease for the Lessee to pay  costs  of  enforcement  on  a  solicitor-client  basis. I accept Mr Coyle’s submission that the doctrine of merger should apply and that this was not considered in the Mutual Finance Group11 decision. In my view, Calypso & Praxis were enforcing the District Court judgment by means of the bankruptcy proceedings, not enforcing the terms of the cancelled lease.

Timing of payment

[42]            I am of the view that Mr Coyle’s submission is correct in that Calypso & Praxis should elect whether the costs awarded should be added to their claim lodged with the trustees under the Proposal, or be payable when the Proposal is completed.  I note  Mr Coyle’s submission that a requirement to pay the costs immediately could be prejudicial to the integrity of the Proposal (although it is noted that there is no evidence of Mr Fistonich’s financial situation before the Court other than his salary) and if the costs award caused a default  by  Mr  Fistonich  under  the  Proposal  resulting  in  Mr Fistonich’s bankruptcy, that would be unfair to the other creditors under the Proposal.

10     Above, n 4.

11     Above, n 8.

[43]            In addition, in my view the  view  taken  by Associate  Judge  Faire  in  the Re St Laurence Lending Ltd12 decision - that the costs should be part of the creditor’s claim under the Proposal is correct as a matter of principle – that the Proposal should bind all the creditors and their claims once approved.

[44]            Accordingly, I make an order below that Calypso & Praxis must elect whether the costs are to be added to their claim under the Proposal, or payable when the Proposal is complete, which it is accepted could be a considerable time in the future.

Quantum of costs awards

Costs in relation to the Proposal

[45]            As I have noted at [17], Mr Fistonich’s costs in respect of dealing with Premier LP and Foy & Halse’s opposition to the Proposal, should be awarded on a 2B basis with a 15 per cent discount. Given the Court has accepted that Premier LP and Foy &Halse were in an equivalent position to having pursued an appeal under reg 32 of the Regulations, my view is that costs as set out at [31] and [33]of Mr Coyle’s submissions of 6 March 2023 should be adopted, reduced by 15 per cent. This gives a costs figure of $9,954.35 plus disbursements of $50.00, totalling $10,004.35.

Costs in relation to the bankruptcy proceedings

[46]            Mr Coyle has submitted (at [52] and [54] of his submissions of 6 March 2023) that  2B  costs  should  be  $3,346.00   and   disbursements   should   be   $852.17. Ms Kalinowski submits at [46] of her submissions of 27 March 2023 that 2B costs should be $8604 and disbursements $869.56. I make the following commentson the costs claimed:

(a)I do not accept Mr Coyle’s submissions at [51] of his memorandum of 6 March 2023 that the costs order made by Associate Judge Gardiner on 17 December 2021 included costs in respect of the application for, and obtaining, the order for substituted service and the filing of the

12     Above, n 5.

bankruptcy notice. On review of the schedule of costs attached to the order, these costs were not included.

(b)I do not accept Mr Coyle’s submissions at [56] of his memorandum of 6 March 2023. Having reviewed the file, the memoranda filed, and appearances by counsel for Calypso & Praxis during the period from March to May 2022, in my view they were all reasonable and in response to memoranda filed by Mr Fistonich. Accordingly, in my view Calypso & Praxis are entitled to these costs.

(c)Having reviewed Ms Kalinowski’s schedule of costs and disbursements at [46] of her memorandum of 27 March 2023, I consider at these costs and disbursements are correctly calculated.

[47]            Accordingly, I make an order below for costs and disbursements against     Mr Fistonich and in favour of Calypso & Praxis of $11,624.45.

Orders

[48]I make the following orders:

(a)Costs and disbursements of $10,004.35 are awarded to Mr Fistonich in respect of the Proposal, payable jointly and severally by Premier LP and Foy & Halse and payable immediately;

(b)Costs and disbursements of $11,624.56 (Costs Award) are awarded to Calypso & Praxis, payable by Mr Fistonich. Calypso & Praxis are to notify the parties and the Court within 10 working days of the date of this judgment whether the Costs Award is to be added to Calypso & Praxis’ claim with the trustees under the Proposal or be payable by  Mr Fistonich at the completion of the Proposal.

(c)If Calypso & Praxis elect to include the Costs Award in their claim with the trustees under the Proposal, the notification to the Court of their election to do so shall be treated as an application pursuant to s 339(1)

of the Act to vary the Proposal to allow Calypso & Praxis’ amended claims to be accepted by the trustees.

…………………………….. Associate Judge Taylor

Solicitors:

WRMK Lawyers (Nick Coyle), Whangarei, for the Judgment Debtor

Smith & Partners (Alana Kalinowski), Auckland, for the Judgment Creditor

Copy for:

Daniel Grove, Barrister, Auckland, for the Supporting Creditors