Grant v CP Asset Management Limited - [2013] NZHC 3341

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-005014 [2013] NZHC 3341

UNDER
sections 243(7) and 245A of the

Companies Act 1993 and Part 19 of the
High Court Rules

IN THE MATTER OF

the liquidation of NZ Properties Holding
Limited (in Liquidation)

BETWEEN

DAMIEN GRANT AND STEVEN KHOV AS LIQUIDATORS OF NZ

PROPERTIES HOLDING LIMITED (IN LIQUIDATION)

Applicants

AND

CP ASSET MANAGEMENT LIMITED First Respondent

ASIA PACIFIC HOTEL INVESTMENTS LIMITED

Second Respondent

C P RETAIL HOLDINGS LIMITED Third Respondent

RAISONS PACIFIC INVESTMENTS LIMITED

Fourth Respondent

SOUTH ISLAND HOTEL INVESTMENTS LIMITED Fifth Respondent

YEIL C & M LIMITED Sixth Respondent

BRIAN AND BRIDGIT LAWRENCE Seventh Respondents

Hearing: (On the papers)

Counsel:

B J Norling for Applicants
R B Hucker for First to Sixth Respondents

G A Keene for Seventh Respondents

GRANT & KHOV AS LIQUIDATORS OF NZ PROPERTIES HOLDING LTD (IN LIQ) v CP ASSET MANAGEMENT LTD [2013] NZHC 3341 [12 December 2013]

Judgment: 12 December 2013

COSTS JUDGMENT OF VENNING J

This judgment was delivered by me on 12 December 2013 at 3.45 pm, pursuant to Rule 11.5 of the
High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: Waterstone Insolvency, Auckland Hucker & Associates, Auckland Pidgeon Law, Solicitors, Auckland

Copy to: G A Keene, Auckland

[1] Following delivery of the Court of Appeal decision the applicants and the seventh respondents seek to have the previous orders of the Court in relation to costs set aside and seek costs on the proceedings in this Court.

[2] Although the Court of Appeal did not directly address the issue, given the decision of that Court the costs order previously made cannot stand. It is set aside.

[3] The applicants seek costs on a 2B basis calculated at $11,343.00.

[4] For the seventh respondents Mr Keene acknowledges that the seventh respondents are in receipt of legal aid but submits, nevertheless, the Court may be justified in awarding the seventh respondents scale costs, notwithstanding they would be higher than the amount actually paid by the Legal Aid Unit. He seeks further time to make submissions.

[5] For the first to sixth respondents Mr Hucker submits that there should be no costs order made in favour of the seventh respondents but if there is to be an order then it should be limited to the costs paid by the Legal Services Agency.

[6] Mr Hucker submits the applicant liquidators should not be awarded costs at all, but if they are, then bearing in mind r 14.2(f) the Court should effectively require the applicants to satisfy the Court that the costs they seek do not exceed the actual costs incurred bearing in mind that Mr Norling is in-house counsel.

[7] I am not prepared to adjourn the matter for further submissions as sought by the seventh respondent. I have a clear view on the issue of costs. The matter has been before the Court for some time and there should be finality.

[8] In terms of the seventh respondents’ position, they played a very limited…

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.

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Details

Case: [2013] NZHC 3341
Decision Date: 12 December 2013

CaseChat Overview and Summary

This case involves the applicants, Damien Grant and Steven Khov, as liquidators of NZ Properties Holding Limited, who are pursuing a legal matter against CP Asset Management Limited and several other respondents. The primary focus is on the costs incurred during the litigation, specifically regarding the allocation of costs between the parties involved in the liquidation of NZ Properties Holding Limited. The Court of Appeal had previously made a costs order, which the applicants and the seventh respondents sought to have set aside and to be awarded costs on the proceedings in the High Court.

The central legal issue before the Court was whether the costs order made by the Court of Appeal should be set aside and, if so, how costs should be allocated among the parties in the High Court. This included determining the appropriate basis for calculating the costs and whether any limitations should apply to the costs awarded to the seventh respondents, who received legal aid funding.

The Court determined that the costs order made by the Court of Appeal could not stand given the Court of Appeal's decision. The Court set aside the previous costs order and proceeded to determine the costs in the High Court. The applicants sought costs on a 2B basis, calculated at $11,343.00. The Court accepted that the seventh respondents were entitled to costs as their interests contributed to the appeal being allowed but limited their costs to the amount paid by Legal Services, along with any contribution from the seventh respondents. The Court further ruled that the applicants were entitled to costs against the first to sixth respondents on a 2B basis, but reduced the quantum based on the actual duration of the hearing and excluded certain costs related to a conference initiated by the applicants and the seventh respondents.

The Court ordered that the seventh respondents were to receive costs against the first to sixth respondents, limited to the payments made by Legal Services together with any contribution from the seventh respondents. Additionally, the applicants were to receive costs against the first to sixth respondents on a 2B basis, calculated at $9,950. This decision provided clarity and finality to the costs issues in the litigation.

Orders