Lucas v Avetar Properties Limited

[2023] NZHC 3629

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2023-409-100

[2023] NZHC 3629

UNDER

the Companies Act 1993

IN THE MATTER

of an application for putting a company into liquidation

BETWEEN

SCOTT ALUN LUCAS

Plaintiff

AND

AVETAR PROPERTIES LIMITED

Defendant

Hearing:

On the papers

Appearances:

G P Davis for Plaintiff

S Caradus and C M G Sykes for Defendant

Judgment:

12 December 2023

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

(Costs)

This judgment was delivered by me on 12 December 2023 at 2.30 pm pursuant to rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date:

LUCAS v AVETAR PROPERTIES LIMITED (COSTS) [2023] NZHC 3629 [12 December 2023]

[1]                 In my judgment of 16 November 2023, I dismissed the plaintiff’s application for the appointment of a liquidator to the defendant (Avetar).1 I awarded Avetar costs on a 2B basis plus disbursements.2

[2]                 Counsel did not agree on the quantum of costs and have submitted memoranda for my consideration.

[3]                 There are several areas of difference between counsel. In respect to those matters of difference I note as follows.

[4]                 The issue of costs in relation to the plaintiff’s application for the appointment of an interim liquidator was dealt with by Associate Judge Lester in his judgment of 13 September 2023.3 He held that costs were to lie where they fall. The defendant has claimed costs for filing memoranda and making appearances for case management in relation to that application to which it is not entitled. The allowances made by the plaintiff’s counsel for the filing of memoranda and appearances for case management are generous in my view.

[5]                 There is no justification for an award of costs in respect to second counsel in a case that was neither legally nor factually complex.

[6]                 I agree with the plaintiff’s counsel’s submission that item 50 of schedule 3 of the High Court Rules applies in this case, and not items 34 and 35.

[7]                 I agree with the plaintiff’s counsel that an allowance of one day is reasonable for preparation for a half-day hearing.

[8]In short, I consider the plaintiff’s counsel’s calculation of costs is correct.

1      Lucas v Avetar Properties Ltd [2023] NZHC 3232.

2 At [65].

3      Lucas v Avetar Properties Ltd [2023] NZHC 2552.

Result

[9]                 Avetar is awarded costs of the proceeding in the sum of $16,252 and disbursements of $220.

O G Paulsen Associate Judge

Solicitors:

Canterbury Legal, Christchurch Duncan Cotterill, Christchurch