Clyma v Kaminski

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2019-463-000035

[2024] NZHC 2287

UNDER the Companies Act 1993and the Fair Trading Act 1986

IN THE MATTER

of prejudiced shareholders and misleading and deceptive conduct

BETWEEN

THOMAS JAMES CLYMA, QIAN WANG, JU LI, CHRISTINA KALESITA CLYMA, JIA ZHAO, XIANMEI MENG, MARCO DUMAS and STEPHEN MICHAEL

REILLY as shareholders of KIWI RIDER LIMITED
Plaintiffs

AND

THOMAS KAMINSKI

Defendant

Hearing: On the papers

Appearances:

E St John and S Maloney for the Plaintiffs T Kaminski in Person

Judgment:

15 August 2024

JUDGMENT OF WALKER J [COSTS]

This judgment was delivered by me on 15 August 2024 at 9 am Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

CLYMA & Ors v KAMINSKI [2024] NZHC 2287 [15 August 2024]

[1] In judgments dated 14 June 20241 and 30 October 20232 I determined that a subset of the plaintiffs were successful and entitled to costs on a 2B basis.

[2] Those plaintiffs have now provided a detailed schedule quantifying those costs and disbursements. I do not see any reason on its face, why the costs claimed should not now be awarded.

[3] The defendant, Mr Kaminski, has not responded to the memorandum filed on behalf of the plaintiffs, nor communicated with the Court despite repeated attempts by the Registry to reach him.

[4]Accordingly, I order costs against Mr Kaminski in the claimed amount of

$81,538.55.

............................................................

Walker J

1 Clyma & Ors v Kaminski [2024] NZHC 1576 at [27].
2 Clyma & Ors v Kaminski [2023] NZHC 3026 at [153].

CaseChat Overview and Summary

In the High Court of New Zealand, Rotorua Registry, a group of shareholders, including Thomas James Clyma, Qian Wang, Ju Li, Christina Kalesita Clyma, Jia Zhao, Xianmei Meng, Marco Dumas, and Stephen Michael Reilly, have sued Thomas Kaminski, a director and shareholder of Kiwi Rider Limited, under the Companies Act 1993 and the Fair Trading Act 1986. The plaintiffs alleged that they were prejudiced due to misleading and deceptive conduct by Kaminski. The court was tasked with determining whether the plaintiffs were entitled to costs as ordered in previous judgments and if Kaminski should be held liable for those costs.

The primary legal issue before the court was whether the plaintiffs were entitled to the costs claimed, as previously determined by the court. The plaintiffs submitted a detailed schedule quantifying their costs and disbursements, which amounted to $81,538.55. Kaminski did not respond to the plaintiffs' memorandum nor did he communicate with the court despite several attempts by the Registry to reach him. The court needed to decide if there were any reasons on the face of the claim why the costs should not be awarded.

The court found no reason on the face of the claim why the costs should not be awarded. Kaminski's failure to respond to the plaintiffs' memorandum or to communicate with the court despite repeated attempts by the Registry meant he had not contested the claim. Therefore, the court ordered that Kaminski pay the costs claimed by the plaintiffs, which amounted to $81,538.55.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

UNDER	the Companies Act 1993and the Fair Trading Act 1986
IN THE MATTER	of prejudiced shareholders and misleading and deceptive conduct
BETWEEN	THOMAS JAMES CLYMA, QIAN WANG, JU LI, CHRISTINA KALESITA CLYMA, JIA ZHAO, XIANMEI MENG, MARCO DUMAS and STEPHEN MICHAEL REILLY as shareholders of KIWI RIDER LIMITED Plaintiffs
AND	THOMAS KAMINSKI Defendant

Hearing:	On the papers
Appearances:	E St John and S Maloney for the Plaintiffs T Kaminski in Person
Judgment:	15 August 2024