Eastlight Asset Trading no.3 Limited v Jaafar Holdings Limited

[2018] NZHC 221

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KOTI MATUA O AOTEAROA TAMAKI MAKAURAU ROHE

CIV-2017-404-1620 [2018] NZHC 221

BETWEEN

EASTLIGHT ASSET TRADING NO.3

LIMITED Plaintiff

AND

JAAFAR HOLDINGS LIMITED Defendant

Hearing:

25 January 2018

(on papers)

Appearances:

Q S Haines for Plaintiff
D J Chisholm QC / D Bullock for Defendant

Judgment:

22 February 2018

JUDGMENT OF ASSOCIATE JUDGE CHRISTIANSEN

This judgment was delivered by me on

22.02.18 at 4.30 pm, pursuant to

Rule 11.5  of the High Court Rules.

Registrar/Deputy Registrar

Date……………

EASTLIGHT ASSET TRADING NO.3 LIMITED v JAAFAR HOLDINGS LIMITED [2018] NZHC 221 [22

February 2018]

[1]      Issues of cost arise upon the Court’s dismissal of an application for liquidation.

[2]      Judge Doogue held there was sufficient evidence to conclude the defendant could pay its debt.  In that result His Honour considered no findings were required upon the defendant’s claim that no debt was due.

[3]      His Honour requested costs submissions be filed. His Honour has now retired and this matter has been referred to me for consideration.

[4]      The defendant seeks increased costs claiming the statutory demand proceeding was an abuse of process – claiming it was used oppressively as a debt collection device.

[5]      The plaintiff responds that evidence of the defendant’s solvency was not provided until after the matter was set down for a defended hearing. The plaintiff says the defendant should pay its costs to that time that solvency evidence was provided.

[6]      However  the  plaintiff  did  not  withdraw  its  application  at  that  time  but proceeded with it, when, a lot of the evidence in question focused upon, as well, whether the debt was payable.

[7]      In this Judge’s view it is not a proper case for increased costs. The proceeding was filed because of the defendant’s failure to provide sufficient evidence of solvency. Clearly the focus of both parties was upon whether or not the debt was owing.

[8]      It is the Court’s judgment:

(a)      The plaintiff should pay the defendant’s costs incurred throughout the proceeding process as detailed in paragraph 2.1 of the defendant counsel’s submissions dated 27 November 2017;

(b)      Costs are payable at a 2B rate, and disbursements are also to be paid;

(c)      There is no credit due nor refund payable for the reasons the plaintiff claims, for despite receiving sufficient evidence of solvency, the application was not withdrawn.

Associate Judge Christiansen