Grant v Pope - [2015] NZHC 2551

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-001726 [2015] NZHC 2551

BETWEEN
DAMIEN GRANT AND STEVEN KHOV

AS LIQUIDATORS OF EASY GROUP LIMITED (IN RECEIVERSHIP AND LIQUIDATION)

Plaintiff

AND

LAURENCE ROBERT POPE First Respondent

AND

CASSANDRA GREENFIELD Second Respondent

On thepapers: 5 October 2015

Appearances:

B Norling and A Ho for the Applicants
A Nicholls for First Respondent
D B Beard for Second Respondent

Judgment:

16 October 2015

COSTS JUDGMENT OF ASSOCIATE JUDGE SARGISSON

This judgment was delivered by me on 16 October 2015 at 4.45 p.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date.......................................

Solicitors:

Waterstone Insolvency, Auckland Legal Street Ltd, Auckland Edwards Clark Dickie, Auckland

A Nicholls, Auckland

GRANT & KHOV v POPE [2015] NZHC 2551 [16 October 2015]

[1] On 29 July 2015 the applicants, who are the liquidators of Easy Group

Limited, filed an originating application pursuant to s 266 of the Companies Act

1993 for an order requiring the first and second respondents to attend the liquidators’

offices for a formal interview.

[2] The first respondent, Mr Pope, was adjudicated bankrupt on 13 August 2014. At the date of Easy Group’s liquidation he was the sole director of the company, and as such, its controlling mind. The second respondent is a former employee of Easy Group.

[3] The respondents did not file any documents in opposition to the application. However, on 20 August 2015 a joint memorandum was filed by counsel for the parties advising that the respondents had agreed to attend an interview, and that the hearing for 21 August 2015 could be vacated accordingly.

[4] The only issues that remain therefore are issues as to costs. The liquidators seek an order for 2B costs against the respondents which they say total $6,690. The respondents oppose any such order. The second respondent seeks reasonable travel and other expenses pursuant to s 261.

[5] The liquidators’ case for costs is essentially that they were put to unnecessary cost by having to make the application when the various notices they sent to the respondents over the period 27 November 2014 to July 2015 went unanswered. Their evidence indicates they gave notice as follows:

(a) 27 November 2014, by post and email to Ms Greenfield, the second respondent;

(b)28 November 2014, by post and email to Mr Pope, the first respondent;

(c) 5 December 2014, by letter addressed to both, hand-delivered to

65 Magma Crescent, Stonefields, Auckland, being Ms Greenfield’s

last known address, and the address provided by the Official

Assignee’s office for Mr Pope;

(d) 11 December 2014, by post and email to both;

(e) 17 December 2014, by Facebook message to both;

(f) 1 July 2015, by email to Mr Aaron Nicholls, solicitor, inquiring as to whether he had authority to receive correspondence for Mr Pope;

(g) On 15 July 2015, by further email sent to Mr Nicholls.

[6] As none of these communications produced a response, on 29 July 2015 the liquidators filed their application.

[7] On 30…

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 Grant v Pope

Details

AGLC: Grant v Pope [2015] NZHC 2551
Case: [2015] NZHC 2551
Decision Date: 16 October 2015

CaseChat Overview and Summary

In the High Court of New Zealand, the liquidators of Easy Group Limited, represented by Damien Grant and Steven Khov, sought an order to compel Laurence Robert Pope and Cassandra Greenfield to attend interviews pursuant to section 266 of the Companies Act 1993. The applicants alleged that the respondents failed to respond to multiple notices sent between November 2014 and July 2015, necessitating formal court proceedings. The first respondent, Mr. Pope, was the sole director of the company at the time of its liquidation, while the second respondent was a former employee. The primary legal issue was whether the liquidators were entitled to costs from the respondents, and if so, in what amount. The liquidators argued that they incurred unnecessary costs due to the respondents' failure to respond to their notices. The respondents, on the other hand, contended that formal orders were not necessary, and they agreed to attend the interviews as soon as they became aware of the liquidators' requirement.

The court found that the liquidators were entitled to costs against Mr. Pope, as he had failed to respond to the notices and only agreed to attend the interview after the liquidators filed the application. The court held that the liquidators were effectively the successful parties on the application against Mr. Pope. However, the court did not find the position to be as clear-cut in the case of Ms. Greenfield. Although the court could not be certain that she had received the prior notices, even if she had chosen to ignore them, the court was not satisfied that there was a real justification for her interview. Consequently, the court ruled that the liquidators should bear their own costs in relation to Ms. Greenfield and declined to award her expenses.

In terms of the quantum of costs, the court found that the liquidators were entitled to costs on a 2B basis against Mr. Pope, but these costs would be calculated as if for an interlocutory application, rather than an originating application. The court also ruled that there would be no order for costs against Ms. Greenfield.

Orders