Gemmell v Norris - [2017] NZHC 2383

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CIV 2012-442-482 [2017] NZHC 2383

UNDER Part 33 of the High Court Rules

BETWEEN

BRUCE DONALD GEMMELL & RHYS JAMES CAIN

Applicants

AND

PATRICK DEAN NORRIS First Respondent

NORRIS MANAGEMENT SERVICES LIMITED

Second Respondent

JACKSON ALEXANDER CHURCHILL Third Respondent

Teleconference: 18 September 2017

Counsel:

G K Riach for Applicants (by telephone) First Respondent in Person

Judgment:

29 September 2017

JUDGMENT OF CHURCHMAN J

[1] By interlocutory application dated 4 August 2017, Patrick Dean Norris (“the

applicant”) applied to strike these proceedings out.

[2] The application sought other relief including what was described as “costs

and/or damages”. The damages were said to be payable to the applicant:

… in respect of those unnecessary costs and expenses as incurred by the First Respondent as a result of the Applicants’ breaches in respect of these proceedings, and/or as subject to the breaches of the Applicants’ undertakings as provided to the Court dated 26 October 2012, and in addition to those further costs and expenses as will be incurred by the First Respondent to the conclusion of these proceedings.

GEMMELL & CAIN v NORRIS [2017] NZHC 2383 [29 September 2017]

[3] The application sought other orders including:

That the Applicants provide by certified copy a full accounting of all funds received in respect of any charges or payments received to them in their capacity as Liquidators of (1) Trafalgar Top Limited (in liq), (2) Frost Steel Compactors Ltd (in liq) and Murchison Buses Ltd (in liq) …

That the Applicants as the successor Liquidators of those three named companies, pay to the First Respondent those funds as received and as referred to … above, in payment of those outstanding fees, expenses and remuneration as due to the First Respondent in priority as the Vacating Liquidator payable by the Applicants as the successor Liquidators of those three named companies in Liquidation as identified.

That the Applicants pay the full costs of the First Respondent’s time and travel to the Applicants’ premises (or storage premises in Christchurch) where the seized documents and files have been stored, and costs on a time charged basis of $80 per hour plus GST for the time taken by the First Respondent to sort those records relative to the liquidations for handover to the Applicants and/or with the overseeing of the independent solicitor during this process as appointed under Rule 33.7, with the balance of those records, documents and/or files, either being destroyed or returned to a nominated address on or after advice from the First Respondent, at the full cost of the Applicants.

To remove the Commissioner of Inland Revenue from these proceedings as a third party.

Costs and expenses in respect of this application payable to the First Respondent by the Commissioner of Inland Revenue to have them so removed.

[4] The grounds upon which the various applications are advanced include what is said to be inordinate delay and breaches of undertakings.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gemmell v Norris

Details

AGLC: Gemmell v Norris [2017] NZHC 2383
Case: [2017] NZHC 2383
Decision Date: 29 September 2017

CaseChat Overview and Summary

Gemmell v Norris was an application by Patrick Dean Norris, the original liquidator of four companies, to strike out proceedings brought by Bruce Gemmell and Rhys Cain, the liquidators appointed following Mr Norris' conviction for theft. The application sought various forms of relief, including an order for costs and damages, on the basis of inordinate delay and breaches of undertakings by the liquidators. The liquidators opposed the application, offering to discontinue the proceedings and close down the liquidations if Mr Norris agreed not to seek any further costs and to release them from any further claims. The Commissioner of Inland Revenue, who had been joined as a third party, consented to be removed from the proceedings but opposed Mr Norris' application for costs against them.

The court considered whether it had jurisdiction to make the orders sought by Mr Norris and whether there was any basis for awarding costs to him. The court found that, while it had jurisdiction to strike out the proceedings and make orders incidental to the search and seizure order, it did not have jurisdiction to make orders relating to the liquidation or to direct that any entity provide undertakings in relation to the liquidation or future potential proceedings. The court also found that there was no legal basis for granting any of the remedies sought by Mr Norris, even if there had been proceedings before the court seeking that sort of relief. The court accepted the liquidators' evidence that there had been no breach of the original undertakings and no damages sustained by Mr Norris or his related entities as a result of the execution of the search order. The court found that the liquidators could not be criticised for seeking the search and seizure order or for coming to the view that, as there was no realistic prospect of recovering any further sums for the benefit of creditors, there was no basis for the proceedings to continue.

The court found that there was no basis for any award of costs against the Commissioner of Inland Revenue, as there was no suggestion that there was anything inappropriate in the Commissioner originally being joined as a third party and there was no basis for awarding Mr Norris costs as a lay litigant. The court found that there was no basis for the court awarding costs to Mr Norris in respect of the strike out application, as the search and seizure order was validly and appropriately obtained and the liquidators could not be criticised for seeking the search and seizure order or for coming to the view that, as there was no realistic prospect of recovering any further sums for the benefit of creditors, there was no basis for the proceedings to continue. The court made no order for costs and costs will lie where they fall.

Orders