Francis v Gross

[2023] NZHC 1452

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-2292

[2023] NZHC 1452

IN THE MATTER OF

Podular Housing Systems Limited (in liquidation)

BETWEEN

BENJAMIN BRIAN FRANCIS and

SIMON DALTON as liquidators of Podular Housing Systems Limited (in liquidation)

Applicants

AND

ILAN GROSS

First respondent

LUMEN BUSINESS SOLUTIONS LIMITED

Second respondent

Continued overleaf

Hearing:

On the papers

Counsel:

B D Gustafson and K K Kommu for applicants

R J Latton for sixth, twelfth, thirteenth, nineteenth and twenty- first respondents

MJF Taylor and L H Mau for eighth respondent E J Grove for fourteenth respondent

H K Mackenzie for twenty-third respondent

Date of judgment:

13 June 2023

JUDGMENT OF JAGOSE J

[Costs]

This judgment was delivered by me on 13 June 2023 at 12.30pm.

Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

FRANCIS v GROSS - Costs [2023] NZHC 1452 [13 June 2023]

ANDCOMMISSIONER OF INLAND REVENUE

Third respondent

AND  MATTHEW PASLEY and JULIE PASLEY

Fourth respondents

AND  LYNLEY ANNE OLSEN

Fifth respondent

AND  ANDREW DOUGLAS BLOOD

Sixth respondent

ANDADAM CHARLES CUNNINGHAM and KEVIN GRAEME HALES

Seventh respondents

AND  DAVID PIROTTA and KATY PERCIVAL

Eighth respondents

AND  ASHLEY JAMES RONALD HART

Ninth respondent

AND  JULIA MARY MCAULEY

Tenth respondent

ANDJEANNIE FRIEDRICH and FELIX SCHOLZ as TRUSTEES OF THE STOKEVENTURES FAMILY TRUST

Eleventh respondents

AND  LOUISE JAEGAR

Twelfth respondent

AND  ANDREW VAN STADEN

Thirteenth respondent

AND  JESU BOANIFACE

Fourteenth respondent

AND  LEIGH HUCKER

Fifteenth respondent

AND  LOUISE KELVIN and HELEN O’HARA

Sixteenth respondents

AND  ALEX WILLIAMS

Seventeenth respondent Continued overleaf

ANDGERAINT EDWARDS and KRISTINA MCCALMAN

Eighteenth respondents

AND  CONVIVIUM LIMITED

Nineteenth respondent

AND  ELI THOMAS

Twentieth respondent

ANDBRETT WATERSON, MARIE WATERSON and LEGAL BEAGLE TRUSTEES LIMITED

Twenty-first respondents

AND  LEANE WATKINS

Twenty-second respondent

AND  KAY DRADER

Twenty-third respondent

AND  MASTERTON DISTRICT COUNCIL

Twenty-fourth respondent

ANDEMPLOYEES OF PODULAR HOUSING LIMITED

Twenty-fifth respondent

[1]        My 10 May 2023 judgment,1 contrary to the position taken by the parties,2 determined:3

[E]ach relevant respondent has an equitable lien, over the partly-constructed pod relating to their respective contract for its construction and installation, to the extent of the purchase moneys (including deposit) paid by them.

and reserved costs.4

[2]        Only the 14th respondent, who had abided my decision (although also adopting the parties’ common position), now seeks costs of $4,541 plus disbursements of $110.

1      Francis v Gross [2023] NZHC 1107.

2      At [5] and [15].

3 At [39].

4 At [40].

The liquidators oppose on grounds directions appropriately were sought, particularly as there was no relevant decision of this Court at the time the application was made.

[3]        Principally because no party can be said either to have failed or succeeded on the application,5 but also as an appropriate claim for the Court’s supervision of the liquidation,6 costs are to lie where they fell, to be borne by the party incurring them.

—Jagose J

Counsel/Solicitors:

Bret Gustafson Barrister, Auckland Sean McAnally Barrister, Auckland Rob Latton Barrister, Auckland

Chris Patterson Barrister Ltd, Auckland Crimson Legal, Auckland

Keegan Alexander, Auckland

Mac & Co Lawyers Ltd, Auckland Russell McVeagh, Auckland

Robertsons, Auckland

Lateral Lawyers Ltd, Auckland

5      High Court Rules 2016, r 14.2(1(a).

6      Companies Act 1993, s 284.