G B Reynolds as Liquidator of Carbonara Enterprises Limited (in liq) v Glengarry Hancocks Limited HC Auckland CIV 2008-404-4745

[2009] NZHC 2594

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2008-404-004745

BETWEEN  G B REYNOLDS AS LIQUIDATOR OF CARBONARA ENTERPRISES LTD (IN LIQUIDATION)

Applicant

ANDGLENGARRY HANCOCKS LIMITED Respondent

Hearing:         ON THE PAPERS Appearances: S W Greer for Applicant

M C Black for Respondent

Judgment:      16 December 2009 at 3 pm

JUDGMENT OF ASSOCIATE JUDGE ROBINSON AS TO COSTS

This judgment was delivered by me on 16 December 2009 at 3 pm, Pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date…….

Solicitors:           M C Black, Barrister, PO Box 1984 Shortland Street, Auckland

Jones Young, PO Box 189 Shortland Street, Auckland

G B REYNOLDS AS LIQUIDATOR OF CARBONARA ENTERPRISES LTD (IN LIQUIDATION)  V GLENGARRY HANCOCKS LIMITED HC AK CIV 2008-404-004745  16 December 2009

[1]      At the conclusion of my decision granting the application by the liquidators to set aside payment made to the respondent as a voidable transaction I indicated that in the absence of any request by counsel to be heard on costs such costs would be fixed on a 2B basis with disbursements as fixed by the Registrar. In a memorandum submitted by counsel for the applicant, the applicant accepts costs on a 2B basis to be appropriate and advises that if the respondent refuses to agree to costs on a 2B basis making the hearing necessary the applicant would seek an increased award of costs as well as costs on the costs hearing.

[2]      Counsel for the respondent in his memorandum accepts that costs should be assessed on a 2B basis but questions the applicant’s claim for costs for three full days charged in respect of the commencement of the proceedings and costs for one day at the hearing claiming that the hearing did not last for one day.

[3]      In the circumstances rather than involve counsel and the parties in the extra costs and inconvenience of a hearing I have decided to deal with the issue of costs on the papers.

[4]      Because I have decided that a hearing is not necessary the applicant will not incur the extra costs and inconvenience of a further hearing. I can see no good reason for these proceedings to be classified under category 3. The proceedings are of average complexity requiring counsel of skill and experience considered average in the High Court and clearly come within category 2.

[5]      If the allocation of three days for the commencement of the proceedings by the applicant is considered appropriate then quite clearly band “B” would be adequate. Counsel for the respondent however submits that the appropriate item in schedule  3  is  item  21  in  respect  of  company  liquidation  proceedings  and  that pursuant to that item .2 of a day is the appropriate time allocation.

[6]      The application to set aside payment made to the respondent was far more complex and difficult than an application for liquidation. An application for liquidation is a relatively simple procedure and would consume far less time than the time  involved  in  preparing  an  application  to  set  aside  payment  which  involves

consideration of detailed evidence, preparation of an affidavit producing documentation and consideration of a relatively complicated provision contained in the  Company’s  Act.  Consequently,  I  conclude  that  the  allowance  of  time  for preparing a statement of claim referred  to in item 1 of schedule 3  to be more appropriate than the time for the preparation for the statement of claim and other documents under item 22.

[7]      The hearing on 19 June 2009 did not last a full day. The hearing lasted three quarters of a day and the claim by the applicant for one full day will therefore be disallowed and reduced to three quarters of a day. Consequently, for the reasons I have set forth the respondent is to pay the applicant’s costs on a 2B basis. Such costs are to be assessed on the basis that the allocated days for commencement of the proceedings is to be three days and the allocated days for the hearing is to be three

quarters of a day. The disbursements are to be fixed by the Registrar.

Associate Judge Robinson