IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2022-404-001228
[2023] NZHC 770
UNDER Companies Act 1993 BETWEEN
ECTCH LIMITED
Applicant
AND
DENNIS & LEO BRADY CONSTRUCTION LIMITED
Respondent
Hearing: On the papers Counsel:
T J P Bowler for Applicant J M Glover for Respondent
Judgment:
5 April 2023
JUDGMENT OF ANDREW J
[Costs]
This judgment was delivered by Justice Andrew on 5 April 2023 at 4.00 pm
pursuant to r 11.5 of the High Court Rules 2016 Registrar / Deputy Registrar
Date …………………………………
ECTCH LTD v DENNIS & LEO BRADY CONSTRUCTION LTD [2023] NZHC 770 [5 April 2023]
[1] In my judgment of 14 November 2022, I dismissed the application by the applicant to set aside a statutory demand under s 290 of the Companies Act 1993.1
[2] I also expressed the preliminary view that having succeeded, Brady Construction, the respondent, was entitled to costs and on an actual and reasonable basis in accordance with s 23(2)(a)(ii) of the Construction Contracts Act 2002.
[3] The parties have been unable to agree on costs. This judgment contains my decision on costs.
[4]I am satisfied that the fees sought by the respondent, namely counsel’s fees of
$13,815 and solicitor’s fees of $9,000 (total fees of $22,815) are fair and reasonable. The respondent has supplied narration details to justify an award of costs in that amount.2
[5] I reject the submission of the applicant that this is akin to a two counsel allowance. The respondent is entitled, in my view, to costs on an actual and reasonable basis. It is reasonable in this case to allow for both counsel and solicitor’s costs.
[6] I further order pursuant to s 291(1)(a) of the Companies Act 1993 that the applicant company is to pay the debt, the subject of the statutory demand, by 28 April 2023 and that in default of payment, the creditor may make an application to put the applicant into liquidation.
Andrew J
1 ECTCH Ltd v Dennis & Leo Brady Construction Ltd [2022] NZHC 2980.
2 Black v ASB Bank Ltd [2012] NZCA 384 at [77]–[79].
- AGLC
- Ectch Limited v Dennis & Leo Bradley Construction Limited [2023] NZHC 770
- Case
- [2023] NZHC 770
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the statutory demand could be set aside and, if not, whether the costs claimed by the respondent were fair and reasonable. The court examined the submissions from both parties regarding the statutory demand and the costs claimed, including the respondent's narration of the fees.
The court found that the statutory demand could not be set aside and therefore upheld it. The court also determined that the costs claimed by the respondent, which included both counsel and solicitor's fees, were fair and reasonable. The court rejected the applicant's argument that the inclusion of both sets of fees was akin to a two counsel allowance. Instead, the court ruled that it was reasonable to award both counsel and solicitor's fees in this case. The court further ordered that the applicant must pay the debt specified in the statutory demand by a certain date, and that failure to do so would allow the respondent to apply for the applicant's liquidation.
In summary, the court upheld the statutory demand, awarded costs to the respondent, and ordered the applicant to pay the debt by a specified date or face potential liquidation.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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