Chunilal v Burgered Restaurants Auckland Limited

[2023] NZHC 63

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2022-419-000185

[2023] NZHC 63

UNDER

Companies Act 1993

IN THE MATTER OF

The liquidation of BURGERED

RESTAURANTS AUCKLAND LIMITED

BETWEEN

NIRMALA CHUNILAL and RAVINDER

THADAKA as trustees of the AUROMA TRUST
Plaintiffs

AND

BURGERED RESTAURANTS AUCKLAND LIMITED

Defendant

Hearing:

On the papers

Counsel:

U A Kuddus for Plaintiff

D S M Gloyn for Defendant

Date of minute:

2 February 2023

JUDGMENT OF ANDREW J

[Costs]

This judgment was delivered by Justice Andrew on 2 February 2023 at 4.00 pm

pursuant to r 11.5 of the High Court Rules 2016 Registrar / Deputy Registrar

Date……………………

CHUNILAL v BURGERED RESTAURANTS AUCKLAND LTD [2023] NZHC 63 [2 February 2023]

Introduction

[1]        These are liquidation proceedings which were discontinued by the plaintiffs shortly before the defended hearing.

[2]        The parties have been unable to agree on costs. This judgment contains my decision on costs.

Analysis and decision

[3]        Rule 15.23 of the High Court Rules 2016 provides that unless the defendant otherwise agrees or the Court otherwise orders, a plaintiff who discontinues must pay costs to the defendant.

[4]        The r 15.23 presumption is designed to give a certain and predictable outcome upon discontinuance. However, it may be displaced if the Court finds there are circumstances which make it just and equitable that it should not apply.1

[5]        I reject the plaintiff’s submission that costs should lie where they fall. The plaintiffs have failed to persuade me that the presumption under r 15.23 should not apply.

[6]        I note that the plaintiffs continued with the proceedings after the judgment of Gendall J setting aside the statutory demand.2 I accept that the liquidation proceedings proceeded on the basis of a subsequent and separate statutory demand, but it appears that that subsequent demand was also the subject of genuine dispute, albeit related to a different time period. The overall justice of the case would not have favoured the plaintiff if the proceedings had been pursued to hearing.

[7]        I have considered whether or not there should be an uplift of costs beyond 2B on the basis of the plaintiffs’ conduct. However, it appears that both parties may on occasions have acted unreasonably. I note that at the eleventh hour the defendant refused to engage in mediation, having previously agreed to do so.

1      McGechan on Procedure HR15.23.01.

2      Burgered Restaurants Auckland Ltd v Chunilal [2022] NZHC 1903.

[8]        I find that the plaintiffs should pay costs to the defendant on a 2B basis, together with disbursements and in accordance with the costs calculation set out in the schedule to the defendant’s submissions of 6 December 2022.

Result

[9]        I order that the plaintiffs are to pay costs to the defendant on a 2B basis in the total sum of $17,447 plus disbursements totalling $323. The total award of costs and disbursements is therefore $17,770.

Andrew J