ETB Realty Ltd v Eastlight Asset Trading No 3 Ltd

In the High Court of New Zealand, ETB Realty Limited sought to set aside a statutory demand issued by Eastlight Asset Trading No 3 Limited, claiming it was based on an unmeritorious argument. The statutory demand was for $142,000, representing refunds due for deposits related to unit title properties at Fenton Street. ETB applied for the demand to be set aside, arguing that Eastlight's demand was ill-advised and based on a flawed argument that ignored previous court judgments and the doctrine of issue estoppel.

The court had to determine whether ETB was entitled to increased costs due to the unmeritorious nature of the statutory demand. The legal issue involved whether the statutory demand was ill-advised and whether increased costs were warranted under the High Court Rules. ETB argued for a 50% uplift on a 2B1 cost calculation, which the court found to be justified given the circumstances. Additionally, ETB sought costs against Mr Kooiman, the sole director of Eastlight, arguing he should be held liable for the costs due to his active role in the litigation.

The court found that the statutory demand was indeed ill-advised and that Mr Kooiman's actions were improper. The court awarded ETB increased costs, totaling $8,028 plus disbursements of $2,264.77. Additionally, the court ruled that Mr Kooiman should be jointly liable for these costs, as he had an active role in the litigation and a substantial financial interest in the outcome. The court dismissed the application to set aside the statutory demand, but made directions for the filing of submissions as to costs.

In conclusion, the court ordered Eastlight Asset Trading No 3 Ltd and Michael Edwin Kooiman to pay ETB Realty Ltd its costs and disbursements, totaling $8,028 and $2,264.77 respectively, as well as the costs of submissions in relation to this costs application, which the court fixed at $1,115.00.