Commissioner of Inland Revenue v Super Turf Limited (in liquidation)

[2018] NZHC 2430

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-0188

[2018] NZHC 2430

BETWEEN

THE COMMISSIONER OF INLAND REVENUE

Plaintiff

AND

SUPER TURF LIMITED (in liquidation) Defendant

MAUKORO WATERCARE AHU WHENUA

The Owner of Super Turf Limited

Hearing:

On the papers

Appearances:

C Van der Merwe for the Plaintiff P V Shackleton for the Liquidators

S Teepu for the Maukoro Watercare Ahu Whenua Trust

Judgment:

14 September 2018

COSTS JUDGMENT OF ASSOCIATE JUDGE SMITH

This judgment was delivered by me on 14 September 2018 at 2.00pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors / Counsel:

Inland Revenue, Auckland Meredith Connell, Auckland

Copy to:
Mr S Teepu

THE COMMISSIONER OF INLAND REVENUE v SUPER TURF LTD (in liq) [2018] NZHC 2430

[14 September 2018]

[1]                   On 31 May 2018 I made an order putting the defendant, Super Turf Limited, into liquidation. I appointed Vivien Judith Madsen-Ries and David Sean Webb liquidators.

[2]                   On 15 June 2018, Mr S Teepu, acting on behalf the  Maukoro  Watercare  Ahu Whenua Trust (the Trust), filed a document seeking to stay the liquidation proceedings. That application was listed for hearing on 20 July 2018, and I heard submissions from Mr Teepu, Mr Van der Merwe, and Mr Shackleton on that day. On 24 July 2018 I gave a judgment dismissing the application, and inviting the Commissioner and the liquidators to file submissions on costs if they could not agree with the Trust.

[3]The Commissioner has since advised that she will not seek costs in the matter.

[4]                   Mr Shackleton has filed a memorandum for the liquidators asking for costs on a 2B basis, in the sum of $2,230. Those costs are calculated on the following basis:

(a)0.4 of a day for filing a memorandum in opposition dated 5 July 2018;

(b)0.2 of a day for attending the hearing on 20 July 2018; and

(c)0.4 of a day for filing the costs memorandum.

[5]                   Mr Shackleton advised that the liquidators wrote to the Trust setting out a costs calculation in which they acknowledged that the liquidators had not filed a formal notice of opposition, and claiming costs of $1,338 (being 2B costs for filing the memorandum and attending the hearing on 20 July). The liquidators advised the Trust that if costs could not be agreed on that basis, they would seek further costs for filing a costs memorandum.

[6]                   Mr Teepu sent an email in reply to Mr Shackleton on 29 August 2018, asserting that the orders of the High Court were null and void. He advised that damages would be sought, presumably from the Crown.

[7]                   The Trust did not file any formal costs submission. However Mr Teepu sent an email to the Registry dated 11 September 2018 advising:

You are warned …

You are in breach of TE TURE WHENUA MAORI – MAORI LAND ACT Section 19: protected by the common laws of England,

Judge Smiths Orders are NULL & VOID: under due process of law you are under investigation …

Discussion and conclusions

[8]                   The ordinary rule is that, while costs remain at the discretion of the Court,1 a party who is successful in litigation is  normally entitled to costs.2    In  this case,    Mr Teepu, acting on behalf of the Trust as shareholder, filed an application which was dismissed; in the ordinary course, both the Commissioner as judgment creditor and the liquidators would be entitled to costs.

[9]                   The Commissioner has not sought costs, but in the circumstances of this case I think the liquidators are entitled to some costs. The stance taken by the Trust had the capacity to impede the liquidators in the discharge of their duties, and it was entirely appropriate for them to be represented at the hearing. It was also appropriate for them to seek some costs in respect of that hearing, and if costs could not be agreed, on having the costs fixed by the Court.

[10]               Mr Teepu and the trustees of the Trust may hold sincere views on the issues which were the subject of my judgments of 31 May 2018 and 24 July 2018, but the Court is obliged to apply the law as the Court sees it, and the Trust's argument did not prevail on either occasion. It is not now sufficient for the Trust to simply assert that the Court's judgment of 24 July 2018 was "null and void", and the Trust has offered no reason why the ordinary principle that costs should follow the event should not apply in this case.

[11]               The liquidators, then, are entitled to some costs. I take note, however, that the liquidators were not required to file a notice of opposition, and that much of the ground

1      High Court Rules, r 14.1.

2      High Court Rules, r 14(1)(a).

traversed at the hearing on 20 July 2018 appeared to cover matters already addressed in my judgment of 31 May 2018. In those circumstances, I think costs are more appropriately dealt with on a category 1, band A basis. By my calculation, costs on that basis would be $960.00. I make an order for costs against the Trust in favour of the defendant, in that sum.

Associate Judge Smith