Lewis Holdings Limited v Steel & Holdings Limited

[2016] NZHC 955

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2013-485-006104 [2016] NZHC 955

UNDER

Part 18 of the High Court Rules

IN THE MATTER

of ss 272(1)(a) and 272(1) of the
Companies Act 1993

BETWEEN

LEWIS HOLDINGS LIMITED First Plaintiff

BORIS VAN DELDEN AND PERI MICAELA FINNIGAN

Second Plaintiffs

AND

STEEL & TUBE HOLDINGS LIMITED Defendant

Judgment:                12 May 2016

JUDGMENT OF COLLINS J

[1]      In the final judgment on 11 September 2015, MacKenzie J awarded costs to the plaintiffs and directed the Registrar to determine the disbursements that should be allowed, pursuant to r 14.22 of the High Court Rules, in the event the parties were unable to reach an agreement.

[2]      The Registrar issued a decision on 5 February 2016 and an amended decision on 23 February 2016.  In granting disbursements, the Registrar took into account the various memoranda filed by the plaintiffs and the defendants. The Registrar awarded most items that were sought by the plaintiffs, but certain items objected to by the defendants were denied.

[3]      The defendants now seek a review of the Registrar’s decision.  A review is

possible pursuant to r 14.23:

LEWIS HOLDINGS LIMITED v STEEL & TUBE HOLDINGS LIMITED [2016] NZHC 955 [12 May 2016]

Review of taxation

The court may, on the application of a party dissatisfied with the Registrar's decision, refer a matter back to the Registrar with any necessary directions, or may itself make any amendments that appear necessary, if—

(a)       the  Registrar  has  ascertained  or  fixed  the  amount  of  costs  or disbursements or the head under which costs are allowed; and

(b)      the Registrar's actions referred to in paragraph (a) were done under these rules or by a direction of the court; and

(c)       it  appears  that  the  Registrar  acted  erroneously  as  to  amount  or principle.

[4]      The parties disagree as to correct standard of review.  The plaintiffs say that a court should adopt the principles established in May v May relating to an appeal from a discretionary decision.1    This is the view of the authors of McGechan on

Procedure.2    The defendant argues that the review should be by way of rehearing.

This is because r 14.23 allows the court to intervene where the Registrar was wrong in principle or as to the amount.  If the court is empowered to amend the decision on disbursements, arguably a rehearing is necessary.

[5]      For the following reasons, I agree with the view of the plaintiffs: review of the Registrar’s decision as to disbursements should consider only whether the decision was wrong as a matter of law or principle, whether the decision took into account irrelevant considerations or failed to take into account relevant considerations, or whether the decision was plainly wrong:

(1)First, r 14.21 provides that the Registrar is to be the sole judge of all questions  of  fact  that  arise  on  taxation.    Although  there  is  no equivalent  provision  regarding  Registrar’s  decisions  on disbursements, it indicates a reluctance to revisit costs decisions of the Registrar;

(2)      Secondly, r 14.23 anticipates a court referring the matter back to the

Registrar, which indicates that the court is checking primarily for errors in the Registrar’s reasoning; and

1      May v May CA58/80, 3 February 1982.

2      McGechan on Procedure (online looseleaf ed, Thomson Reuters) at [HR14.23.01].

(3)Thirdly, the use of the term “review” rather than “appeal” further supports  the  plaintiff’s  position.     In  considering  an  analogous provision  under  the  Law  Practitioner’s  Act  1982  in  Skinner  v Harkness Henry & Co, the High Court found:3

First, it will be noted that by virtue of s 149 of the Law Practitioners Act, the role of this Court is mercifully limited. It has no power to rehear the case.  Section 149 confers no more  than  the  power  to  “review  the  decision”  of  the Registrar.     To  review  someone  else’s  decision  is  very different from embarking upon one’s own consideration of a case de novo.  As Holland J held in Ministry of Works and Development v Herring (14.7.88 Dunedin M7/86), the Court will interfere with the Registrar’s decision if satisfied that the Registrar had acted on a wrong principle.

[6]      I find no error of the requisite character in the Registrar’s decision.  Whether each of the disputed items should be allowed is a matter of judgment and there is no rule that prevents any of them being recovered.  Therefore, the Registrar made no error of law.  The decision to grant each item was a reasonable one and therefore was not plainly wrong.

[7]      The  defendant  also  submitted  that  the  Registrar  failed  to  give  adequate reasons  for  her  decisions  and  gave  no  indication  of  having  considered  the defendant’s arguments.  In her decision, the Registrar noted that the memoranda of counsel for the plaintiffs and the defendant had been considered.   Further, certain items included in the plaintiffs’ claim for disbursements and disputed by the defendant were not granted, which indicates the memoranda were indeed considered. For completeness, there is nothing to indicate the Registrar took into account irrelevant factors in making her decision.

[8]      Having found no error in the Registrar’s decision, the application for review

is dismissed.

[9]      The plaintiffs are entitled to costs in relation to the application to review the

Registrar’s decision. Those costs will be on a scale 2B basis.

3      Skinner v Harkness Henry & Co HC Hamilton AP44/90, 16 July 1990 at 5.

D B Collins J

Solicitors:

Shieff Angland, Lawyers, Auckland for Plaintiffs

Buddle Findlay, Wellington for Defendant