Greenbaum v Lockwood - [2020] NZHC 203

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV 2019-419-273

[2020] NZHC 203

IN THE MATTER OF the Insolvency Act 2006

IN THE MATTER OF

the Bankruptcy of BARBARA KAY LOCKWOOD

BETWEEN

ADAM RAPHAEL GREENBAUM

Judgment Creditor

AND

BARBARA KAY LOCKWOOD

Judgment Debtor

Hearing: On the papers

Appearances:

RG Ewen for the Judgment Creditor SRG Hamilton for the Judgment Debtor

Judgment:

18 February 2020

RESERVED JUDGMENT OF ASSOCIATE JUDGE SMITH

This judgment was delivered by me on 18 February 2020 at 4pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Counsel / Solicitors:
RG Ewen, Auckland, rod@wynyardwood.co.nz
SRG Hamilton, Auckland, simon@simonhamilton.co.nz D Burgess, Auckland, doug@dblaw.co.nz

Case Officer:
Sunaina Chand

Greenbaum v Lockwood [2020] NZHC 203 [18 February 2020]

[1] Following my judgment delivered on 17 January 2020,1 in which I struck out the judgment debtor’s application to set aside the creditor’s bankruptcy notice, counsel have now filed memoranda on costs.

[2] The judgment creditor seeks costs on a 2B basis, in the total sum of $1,434. Mr Ewen submitted that the substance of the work undertaken for the creditor was analogous to that which would have been required on an interlocutory application. On that basis, the creditor (as the successful party) would have been entitled to 0.6 of a day at a daily rate of $2,390 under Schedules 2 and 3 to the High Court Rules 2016. He asked for an award of costs of $1,434 accordingly.

[3] Mr Hamilton submitted that the judgment debtor could not be described as a party who has failed with respect to a proceeding, as the proceeding has not yet been completed. The judgment creditor has now filed an application for adjudication, and costs in any proceeding are properly determined once the Court has finally dealt with that proceeding.

[4] I deal with that submission immediately. Costs are routinely awarded on a debtor’s unsuccessful application to set aside the bankruptcy notice, regardless of whether the creditor has since filed an adjudication application.

[5] Next, Mr Hamilton submitted that the judgment creditor filed no notice of application or affidavit evidence, other than a process server’s affidavit proving service of the bankruptcy notice. That affidavit had to be filed in any event in the subsequent adjudication proceeding, and should not be the subject of any separate costs award on the application to set aside the bankruptcy notice.

[6] Mr Hamilton submitted that all the judgment creditor did was file a two-page memorandum on 27 November 2019, and a one-page memorandum on 10 December 2019. The memoranda filed by the creditor could have been prepared by junior counsel, and that if any costs are to be awarded, they should be awarded on a 1A basis. On Mr Hamilton’s calculation, that would justify a costs award of $318.

1 Greenbaum v Lockwood [2020] NZHC 18.

Analysis

[7] I accept Mr Ewen’s submission that the situation here was analogous to the situation where a party has…

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 Greenbaum v Lockwood

Details

AGLC: Greenbaum v Lockwood [2020] NZHC 203
Case: [2020] NZHC 203
Decision Date: 18 February 2020

CaseChat Overview and Summary

In Greenbaum v Lockwood, Adam Raphael Greenbaum, the judgment creditor, sought costs from Barbara Kay Lockwood, the judgment debtor, following the striking out of her application to set aside a bankruptcy notice. The case was heard in the High Court of New Zealand, Hamilton Registry. The central legal issue was the appropriate basis and amount of costs to be awarded to the judgment creditor for the work done in response to the debtor's unsuccessful application. The judgment creditor argued that the work done was akin to that required for an interlocutory application, warranting costs of $1,434. The judgment debtor contested this, arguing that the proceeding was incomplete and that costs should only be determined once the final adjudication had occurred. Additionally, the debtor argued that the creditor's submissions were minimal and should be considered on a less extensive basis.

The court considered the submissions and noted that while the proceeding was not formally an interlocutory application, the creditor had indeed filed substantive written submissions, which were comparable to those filed in interlocutory applications. The court accepted that the creditor's work was substantial enough to warrant costs on a 2B basis but reduced the amount to $1,000 to reflect the brevity of the reply submissions and to avoid double-counting costs that would be incurred in the adjudication proceeding. The court also ruled that the costs judgment would not be sealed pending any potential recall of the earlier judgment.

Orders