Kiwi Best Realty Limited (in liquidation) v Kashkari

[2017] NZHC 258

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-864 [2017] NZHC 258

BETWEEN

KIWI BEST REALTY LIMITED (IN

LIQUIDATION) Plaintiff

AND

VIVIEN JUDITH MADSEN-RIES AND HENRY DAVID LEVIN AS LIQUIDATORS OF KIWI BEST REALTY LIMITED (IN LIQUIDATION) Second Plaintiffs

AND

JUMSHIED HUSSAIN KASHKARI Defendant

On the papers
Appearances:	P V Shackleton and E E Meade for the Plaintiffs A S R Kashyap for the Defendant
Judgment:	24 February 2017

(FINAL) JUDGMENT OF MUIR J

This judgment was delivered by me on 24 February 2017 at 11.00 am

Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Kiwi Best Realty Ltd (In Liquidation) v Kashkari [2017] NZHC 258 [24 February 2017]

[1]      In my interim judgment of 15 November 2016,1 I recorded the following:

[57]      I give judgment in favour of the plaintiffs for a sum representing total debt incurred by the company to IRD from 31 December 2009 (together with interest and penalties thereon as calculated by IRD from time to time) less:

(a)       25 per cent of that amount; and

(b)       the sum of $8,272.00 being Mr Kashkari’s overpayment in respect of

his current account.

[58]     The liquidator is, within 21 days, to provide an affidavit with the necessary calculations.   The defendant may respond within seven days.   I will then issue a final judgment.

[2]      On 6 December 2016 Mr Levin provided the affidavit which  I called for. There has been no response from the defendant.  It is appropriate, therefore, that I now issue a final judgment.

[3]      Mr Levin's affidavit calculates the amount owing pursuant to my interim judgment as being $422,792.17.   That includes the Commissioner's costs as petitioning creditor on the winding up of the plaintiff in the amount of $4,343.61. Such sum was included in the relief sought in the proceedings and is, in my view, part of the total debt incurred by the company.  I accept his calculations.

[4]      Mr Levin points out that his total excludes both the core debt incurred prior to 31 December 2009 and the interest and penalties incurred on such debt, whether the interest and penalties accrued pre-31 December 2009 or after.  That was, in my view, an appropriate exclusion. In its terms paragraph [57] allows penalties and interest   only   on   the   "total   debt   incurred   by   the   company   to   IRD   from

31 December 2009".  Such reference to be read as permitting recovery of interest and penalties only on core debt incurred after that date.

[5]      In  a  supporting  memorandum  counsel  also  points  out  that  the  interim judgment does not address the prayer for relief for interest made in respect of all

causes of action.

1      Kiwi Best Realty Limited (In Liquidation) v Kashkari [2016] NZHC 2738.

[6]      My expectation was that this would be dealt with in my final judgment and that a specific calculation would be provided in that respect.  I agree with counsel that an award of interest pursuant to s 87 of the Judicature Act 1908 is appropriate from the date of the plaintiff's liquidation (26 September 2014). The purpose of such an award is simply to provide compensation to the plaintiff which has otherwise been kept out of moneys due to it, and there is significant authority for awarding

interest on breach of duty claims brought under the Companies Act 1993.2

Result

[7]      I give judgment in favour of the plaintiffs in the amount of $422,792.17 calculated as follows:

Debts incurred to Inland Revenue subsequent to

31 December 2009

$574,752.22

Less 25 percent deduction in accordance with paragraphs
[56] and [57](a) of my interim judgment

$143,688.05

Less overpayment by Mr Kashkari on current account

8,272.00

$422,792.17

[8]      I award interest on such sum calculated in accordance with the provisions of the Judicature Act from 26 September 2014

Costs

[9]      These are dealt with in terms of my interim judgment.

Muir J

2      See Bay Kiwifruit Contractors Limited v Ladher [2015] NZHC 63; Sojourner v Robb [2006] 3

NZLR 808 (HC); Robb v Sojourner [2008] 1 NZLR 751 (where the award of interest was not disturbed on appeal); Walker v Allen (HC Nelson, CP 13/00, France J, 18 March 2004); Syntax Holdings (Auckland) Limited v Bishop [2013] NZHC 2717.