Gibson v Fisher HC Auckland CIV-2006-404-103

[2011] NZHC 606

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2006-404-103

BETWEEN  NEVILLE JAMES GIBSON (BANKRUPT)

First Plaintiff

ANDPATRICK JOSEPH MCCORMICK (BANKRUPT, PROCEEDING STAYED) Second Plaintiff

ANDMICHAEL JOHN FISHER First Defendant

ANDRICHARD DIGBY WALLIS Second Defendant

ANDHUSSEY & CO (DISCONTINUED) Third Defendant

ANDHUNT EDWARDS (DISCONTINUED) Fourth Defendant

ANDLEGAL SERVICES AGENCY Fifth Defendant

ANDCLANCY FISHER OXNER BRYANT (DISCONTINUED)

Sixth Defendant

Hearing:         (on papers)

Appearances: Mr S Hamilton for first defendant (on papers) Mr P Napier for second defendant

Mr Graham Taylor for fifth defendant

Judgment:      28 June 2011 at 4:00 PM

JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE

Counsel:

This judgment was delivered by me on

28.06.11 at 4 pm, pursuant to

Rule 11.5  of the High Court Rules.

Registrar/Deputy Registrar         Date……………

Kennedys, P O Box 3158, Auckland – [email protected]

GIBSON (BANKRUPT) V FISHER HC AK CIV-2006-404-103 28 June 2011

Keegan Alexander, P O Box 999, Auckland – [email protected]

Mr G Taylor, Barrister, P O Box 8045, Wellington – [email protected]

Copy: Official Assignee – Private Bag, Wellesley Street – [email protected]

[1]      On 26 June 2006 I made an order staying these proceedings.  Subsequently, on 21 July 2009 I heard and determined applications for security for costs which were made by the first,  second,  fourth  and  fifth  defendants.    By that  date, Mr McCormick,  one of the plaintiffs  had  been  made bankrupt.    In  my judgment  I directed that $35,000 security for costs in favour of each of the applicants and I extended the stay order.

[2]      I did not deal with the issue of costs on the application for security for costs and that now needs to be attended to.

[3]      Mr Gibson was adjudicated bankrupt on 24 November 2010.   The official assignee has advised the solicitors for the fifth defendant in a letter dated 26 April

2011 as follows:

Mr Gibson was adjudicated bankrupt on 24 November 2010 the Assignee has taken legal advice and of the view that any right to pursue proceedings as vested in the Assignee under Section 101 of the Insolvency Act 2006.  As such the Assignee does not intend to continue proceeding CIV-2006-404-

103 against the remaining defendants of his own accord or otherwise assigning the right to do so.

[4]      This makes it clear that that the Official Assignee apparently does not intend to take steps to discontinue the proceedings.  The first, second and fifth defendants now seek orders striking out the proceeding.

[5]      In my view the time is overdue for these proceedings to be brought to an end. It is five years since they were commenced.  The proceedings have been stayed since

21 July 2009.  Both plaintiffs are bankrupt.  The defendants are now entitled to have certainty that the proceedings will not be going any further.  I make an order striking out the proceedings.  I make orders fixing costs on the application for security for costs on a 2B basis together with disbursements as fixed by the Registrar.

[6]      As I understand it, no payment was made to the Registrar in terms of my judgment directing security for costs and therefore no orders would seem to be needed  to  release  funds  paid  by  way  of  security  for  costs  to  the  defendants. However because that matter is not dealt with in counsels memoranda, I reserved leave to the parties to make further application in that regard within 14 days.   I

reserve leave generally to apply for further directions.

J P Doogue

Associate Judge