Madsen-Ries v Accident Compensation Corporation

[2013] NZHC 3238

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-003881 [2013] NZHC 3238

UNDER  the Companies Act 1993

IN THE MATTER             of PERSONAL HOMES LIMITED (IN LIQUIDATION)

BETWEEN  VIVIEN JUDITH MADSEN-RIES and HENRY DAVID LEVIN as liquidators of PERSONAL HOMES LIMITED (IN LIQUIDATION)

Plaintiff

ANDACCIDENT COMPENSATION CORPORATION

Defendant

Hearing:                   (On the papers)

Counsel:                  D Nicholson and D Bennington for Applicants

D S Lester for Respondent

Judgment:                5 December 2013

COSTS JUDGMENT OF VENNING J

This judgment was delivered by me on 5 December 2013 at 11.30 am, pursuant to Rule 11.5 of the

High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Duncan Cotterill, Auckland

Zone Law Limited, Wellington

MADSEN-RIES & ANOR as liquidators of PERSONAL HOMES LIMITED (IN LIQ) v ACCIDENT COMPENSATION CORPORATION [2013] NZHC 3238 [5 December 2013]

[1]      The  applicant  liquidators  applied  to  the  Court  for  orders  setting  aside payments made by Personal Homes Limited (in liquidation) to the respondent Corporation prior to liquidation. The sum in issue was $11,764.52.

[2]      The respondent Corporation entered an appearance indicating the application would be opposed and a fixture was allocated.  Ultimately a fixture was not required. The respondent did not file any formal documents in opposition and paid the sum in issue before the date of the fixture.  The application was withdrawn on the basis that payment in full was made by the respondent to the applicant.  Costs were reserved to be dealt with by way of memorandum.

[3]      The applicant now seeks costs on a 2B basis together with a 50 per cent uplift and disbursements.  The respondent acknowledges that costs on a 2B basis cannot be opposed but submits there is no justification for an uplift.

[4]      I have reviewed the memoranda.  The applicants seek an uplift on the basis that in opposing the claim but providing no evidence the respondent pursued an argument that lacked merit.  They also submit that if the respondent had accepted the payment was an insolvent transaction at the outset the applicants would not have incurred the actual costs of bringing the application.

[5]      I  note  those  points  but  in  my  judgment  this  case  does  not  satisfy  the requirement for an uplift.  The respondent has not pursued an argument that lacks merit.  It conceded prior to the hearing and paid the full sum in issue.  Further, a full recovery of costs on a 2B basis is the appropriate award given the quantum in issue.

[6]      The position would have been different and an uplift appropriate if the respondent had maintained the defence to a full fixture.  It did not.

Result

[7]      The applicants are to have costs against the respondent in the sum of $9,751 together with disbursements of $1,180, in total $10,931.

Venning J