Dalton v Reeves Family Trust

[2023] NZHC 3496

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-1213

[2023] NZHC 3496

IN THE MATTER OF

FIRSTBUILD CONSTRUCTION LIMITED

(in Receivership and in Liquidation)

BETWEEN

SIMON DALTON as liquidator of

FIRSTBUILD CONSTRUCTION LIMITED

(in Receivership and in Liquidation) Applicant

AND

JON BLAIKLOCK REEVES and SILVIA

ELISABETH REEVES as trustees of the REEVES FAMILY TRUST

First Respondents

AND

DAMIEN GRANT and ADAM

BOTTERILL as receivers of FIRSTBUILD CONSTRUCTION LIMITED

(in Receivership and in Liquidation) Second Respondents

Hearing:

11 September 2023

Counsel:

A W Johnson for Applicant

D Purusram for First Respondent K A Cocks for Second Respondent

Judgment:

4 December 2023

COSTS JUDGMENT OF ANDERSON J

This judgment was delivered by me on 4 December 2023 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules 2016.

……………………………… Registrar/Deputy Registrar

Solicitors:    Martelli McKegg, Auckland

Victorian Lawyers Ltd, Auckland Waterstone Insolvency, Auckland

DALTON v REEVES FAMILY TRUST [2023] NZHC 3496 [4 December 2023]

[1]                 The applicant, as liquidator of FirstBuild Construction Ltd, was successful in obtaining directions pursuant to s 284 of the Companies Act 1993 that the Reeves Family Trust (the Trust) did not have an equitable lien in certain building materials that were held by the liquidator.1 They seek costs against the Trust on a 2B basis.

[2]                 The Trust say that costs should lie where they fall or alternatively some steps should not be allowed for and/or others should be much reduced. The second respondents, as receivers, were joined to the proceeding on the day of the hearing. They do not oppose the orders sought.

[3]                 The matter first came before the Court by way of an interim injunction application brought by the Trust. After a telephone conference with Grice J and at her suggestion, that application did not proceed. Instead, the liquidators were invited to, and did, apply for directions as to the status of the building materials. This was with a view to securing determination of the questions in issue more efficiently and time effectively by way of originating application.2

[4]                 The application originally related to more building products than remained in issue by the time it came to me for hearing. The Trust in effect contends that this shows they have been partly successful in achieving what they intended. However, the matter did need to proceed to a full hearing on the matters not agreed, with the in-principle arguments largely the same. I do not accept that the narrowing of the issues negates the applicant’s entitlement to costs.

[5]                 The applicant being successful is entitled to costs. I see no basis for disturbing that general principle. The proceeding is also appropriately classified as a Category 2 proceeding with the various steps claimed appropriately having a B classification.

[6]                 The applicant seeks costs of attendance at a mention prior to its current application being filed. This attendance relates to the Trust’s application for an interim injunction. I disallow that aspect of the costs award given that it related to another proceeding.

1      Dalton v Reeves [2023] NZHC 2779.

2      Reeves v Dalton HC Auckland CIV-2023-404-1213, 19 June 2023 at [4].

[7]The claim for costs and disbursements is otherwise successful.

Result

[8]I order costs by the applicant against the first respondents in the sum of

$11,463.57 based on the applicant’s memorandum.

Anderson J