D K Kelsey Limited v Eger Properties Limited

[2015] NZHC 2112

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2015-404-001048 [2015] NZHC 2112

UNDER	Section 290 of the Companies Act 1993
IN THE MATTER OF	an application to set aside a Statutory Demand
BETWEEN	D K KELSEY LIMITED Applicant
AND	EGER PROPERTIES LIMITED Respondent

Hearing:	On the papers
Counsel:	M Taylor for the Applicant J Heard for the Respondent
Judgment:	2 September 2015

JUDGMENT AS TO COSTS

OF ASSOCIATE JUDGE CHRISTIANSEN

This judgment was delivered by me on

02.09.15 at 4:30pm, pursuant to

Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

D K KELSEY LIMITED v EGER PROPERTIES LIMITED [2015] NZHC 2112 [2 September 2015]

[1]      The Court has considered counsels’ written submissions as to the fixing of

costs upon the respondent’s withdrawal of its statutory demand.

[2]      That has occurred since the applicant succeeded with its application to the

District Court to set aside the respondent’s judgment against the applicant.

[3]      In  issue  is  whether  the  applicant  should  be  entitled  to  2B  costs  and disbursements because the respondent no longer opposes the application to set aside the statutory demand.

[4]      The applicant claims 2B costs and disbursements.

[5]      The respondent submits that costs should lie where they fall but if costs are to be awarded then they should be fixed on a 1A basis.

[6]      The Court has considered the lengthy memoranda of counsel.    The Court concludes:

a)       There was good ground for the issue of a statutory demand.   The respondent had obtained a District Court judgment by default.

b)In  its  application  to  set  aside  the  statutory  demand  significant evidence was provided by affidavit of the background of the parties’ dispute.

c)       The respondent would not withdraw its statutory demand and the applicant was obliged to apply to the District Court to set aside the judgment.

d)        The application was opposed but was successful.

[7]      In that outcome the respondent agreed to withdraw its statutory demand. [8] The Court sees no reason not to set costs on a 2B basis.

[9]      However, the Court will not allow the claim for the filing of a memorandum on 21 August 2015 for the purpose of that memorandum was to address the issues of costs and it is the Court’s view that any costs incurred in relation to arguing the question of costs should lie where they fall.

[10]   Therefore the Court calculates costs owing as $5,174.00 together with disbursements of $540.00 payable by the respondent to the applicant.

Associate Judge Christiansen