Haines v Memelink

[2021] NZHC 2333

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2021-485-28

[2021] NZHC 2333

UNDER

the Insolvency Act 2006

IN THE MATTER

of an application for an order pursuant to s 17 of the said Act setting aside a bankruptcy notice

BETWEEN

QUENTIN STOBART HAINES

Judgment Debtor

AND

HARRY MEMELINK and

CISCA FORSTER in their capacities as the trustees of Link Trust (No. 1)

Judgment Creditors

Hearing:	On the papers
Appearances:	J D Dallas for first judgment debtor D Livingston for judgment creditors
Judgment:	7 September 2021

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

[Costs]

[1]                 In my judgment dated 29 June 2021 I declined the judgment debtor’s application for an order setting aside a bankruptcy notice served on him by the judgment creditors, the trustees of the Link Trust (No. 1). I reserved costs, indicating that my preliminary view was that costs should follow the event. Counsel have been unable to resolve costs and I now have memoranda from Mr Livingston for the trustees and Mr Dallas for the judgment debtor. The trustees seek costs on a 2B basis which Mr Livingston has calculated at $8,126, together with disbursements of $110 making a total of $8,236.

HAINES v MEMELINK [2021] NZHC 2333 [7 September 2021]

[2]                 Mr Dallas accepts that the rules require costs in proceedings to be dealt with at the conclusion of the same, that the trustees were successful in the proceeding, the appropriateness of 2B costs in this case and Mr Livingston’s calculation of costs and disbursements.

[3]                 However, the judgment debtor has appealed from my decision on the basis that I failed to take into account a judgment debt owed by the trustees to the judgment debtor which Mr Dallas submits makes the trustees net debtors of the judgment debtor.

[4]                 The difficulty is that that is a matter of dispute, and further complicated by a recent summary judgment on liability in favour of the trustees against the judgment debtor.

[5]                 Obviously, it would not be appropriate for this Court, dealing with a costs application, to seek to resolve the dispute between the parties as to whether or not the judgment debt owed by the trustees to the judgment debtor, or the more recent summary judgment as to liability, materially alter the position.

[6]                 The proper course is for this Court to fix costs so that these too are before the Court of Appeal, but stay execution of the costs order. I fix costs and disbursements at the agreed figure of $8,236 and make an order staying execution of that costs order pending the conclusion of the appeal or further order of this Court.

Associate Judge Johnston

Solicitors:

J D Dallas, Wellington for judgment debtor

Livingston & Livingston, Wellington for judgment creditors