Chesterfields Preschools Limited (in liquidation) v Sisson - [2019] NZHC 3069

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2017-409-000125

[2019] NZHC 3069

BETWEEN
CHESTERFIELDS PRESCHOOLS

LIMITED (In Liquidation) Judgment Creditor

AND

THERESE ANNE SISSON

Judgment Debtor

Hearing: On the papers

Appearances:

B M Russell and J C Wedlake for Judgment Creditor Judgment debtor in person

Judgment:

25 November 2019

JUDGMENT OF DUNNINGHAM J RE: COSTS DECISION

This judgment was delivered by me on 25 November 2019 at
11.00 am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date: 25 November 2019

[1] The applicant, Ms Therese Sisson, sought a stay of the proceeding and execution of the judgment of Osborne J, delivered on 23 June 2017, which adjudicated Ms Sisson bankrupt (the stay application).1 The stay was sought pending the

1 Chesterfields Preschools Ltd (in liquidation) v Sisson [2017] NZHC 1410.
CHESTERFIELDS PRESCHOOLS LIMITED (In Liquidation) v THERESE ANNE SISSON [2019] NZHC
3069 [25 November 2019]

determination of a claim alleging misfeasance against the Commissioner of Inland Revenue in other High Court proceedings.2

[2] The respondent, Chesterfields Preschools Ltd, opposed the stay application on the grounds that it was frivolous, vexatious and misconceived, and there was no jurisdictional basis for the order the applicant was seeking.

[3] On 16 September 2019, Ms Sisson filed a memorandum seeking an adjournment of her stay application in order to await the outcome of an appeal of a decision in related proceedings where Osborne J had ruled there was no jurisdiction to seek a stay of an adjudication order under High Court r 17.29 (the jurisdiction decision).3

[4] In the jurisdiction decision Osborne J ruled that reliance upon r 17.29 to seek stay of an order of adjudication was “misconceived” because such an order determines an individual’s status and is not a judgment creating a civil debt or other liability, saying:4
Part 17 of the High Court Rules is concerned with the enforcement of judgment debts where one party (the “liable party”) is liable to another party (“the entitled party”). This is not such a case.

[5] This appeal of the jurisdiction decision has been set down for hearing in the Court of Appeal on 25 February 2020.

[6] I declined the application for an adjournment of the stay application, at which point Ms Sisson filed a notice of discontinuance. However, costs was not addressed and I made directions as to the filing of memoranda on the costs issue.

The respondent’s position on costs

[7] Memoranda have now been filed and the respondent seeks costs on a 2B basis calculated as follows:

2 CIV-2008-409-995.
3 Commissioner of Inland Revenue v Chesterfields Preschools Ltd (in interim liq)
[2019] NZHC 1774.
4 At [20].

Item

Description

Daily Rate

Days

Total

23

Filing opposition to interlocutory application

$2,390

0.6

$1,434.00

12

Appearance at mentions hearing or call-over on 23 September 2019

$2,390

0.2

$478.00

24

Preparation of written submissions (reduced by 50% to reflect the submissions were not finalised).

$2,390

1.5

reduced to…

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: [2019] NZHC 3069
Decision Date: 25 November 2019

CaseChat Overview and Summary

Chesterfields Preschools Limited, a company in liquidation, brought an action against Therese Anne Sisson, the judgment debtor, seeking a costs order following Ms Sisson's unsuccessful application to stay the enforcement of a judgment against her. Ms Sisson had applied to stay the proceedings on the basis of an alleged misfeasance by the Commissioner of Inland Revenue, but the stay application was made two years after the original judgment was made. The respondent opposed the stay application on the basis that it was frivolous and vexatious, and that there was no jurisdictional basis for the order sought. Ms Sisson subsequently filed a notice of discontinuance, but the court declined to adjourn the stay application, leading to a discussion of costs. The central legal issue in this case was whether the court should grant the respondent's application for costs following Ms Sisson's discontinuance of her stay application. The respondent argued that Ms Sisson should pay costs on a 2B basis, as she had made an application for a stay that was ultimately unsuccessful. The court considered the merits of Ms Sisson's application and determined that it was not tenable on the facts and law as at the time the application was made. The court further held that Ms Sisson's decision to discontinue the stay application meant that she had to face the usual consequences of making an application and then withdrawing it, which included a requirement to pay costs. The court found that the amount sought by the respondent was reasonable and ordered that Ms Sisson pay the respondent $3,704.50 in costs and $110.00 in disbursements.

Orders