Madsen-Ries v Just

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2012-404-003944 [2013] NZHC 2851

UNDER the Companies Act 1993

IN THE MATTER of the liquidation of Green Securities Limited (In Liquidation) and Presidential Homes New Zealand Limmited (In Liquidation)

BETWEEN VIVIEN JUDITH MADSEN-RIES and HENRY DAVID LEVIN as Liquidators of Green Securities Limited (In Liquidation) and Presidential Homes New Zealand Limited (In Liquidation)
Plaintiffs

ANDSTEPHEN RUSSELL JUST Defendant

Appearances: On the papers.

Judgment: 30 October 2013 at 11:30am

JUDGMENT OF ANDREWS J [Costs]

This judgment is delivered by me on 30 October 2013 at 11.30am pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

Solicitors:
Meredith Connell, Auckland

MADSEN-RIES and ANOR v JUST [2013] NZHC 2851 [30 October 2013]

[1] The plaintiffs succeeded in their proceeding against the defendant for breach of his duties as a director under ss 135, 136, and 137 of the Companies Act 1993, and has been ordered to contribute to the assets of Green Securities Limited (In Liquidation) and Presidential Homes New Zealand Limited (In Liquidation), pursuant to s 301 of the Act.1

[2] I have now received memoranda as to costs. The plaintiff agrees that scale

2B costs are appropriate, but claims $27,000, a little less than the amount payable according to the scale. The plaintiffs also seek disbursements of $8,303.51, the bulk of which relate to the setting down fee and hearing fee (together, $6,283.60), and the filing fee ($1,329.20).

[3] Mr Just has filed a response to the plaintiffs’ claim for costs. He contends at that they should not be awarded costs. In large measure, the matters raised by Mr Just repeat matters which he raised at trial.

[4] Pursuant to r 14.2(a) of the High Court Rules, the general principle as to determining costs is that the party who fails should pay costs to the party who succeeds. Pursuant to r 14.7, the Court may refuse to make an order for costs, or may reduce the costs otherwise payable, in certain circumstances.

[5] In this case, the matters raised by Mr Just were rejected when they were raised at trial. I am not satisfied that any of the matters are such that costs should either be refused, or reduced.

[6] Accordingly, I order costs in favour of the plaintiffs, in the sum of $27,000, together with disbursements of $8,303.51.

Andrews

1 Madsen-Ries v Just [2013] NZHC 2254.

CaseChat Overview and Summary

The case involved Vivien Judith Madsen-Ries and Henry David Levin, the liquidators of Green Securities Limited (In Liquidation) and Presidential Homes New Zealand Limited (In Liquidation), who sued Stephen Russell Just for breach of his duties as a director under sections 135, 136, and 137 of the Companies Act 1993. The plaintiffs sought an order for Mr Just to contribute to the assets of the companies. The court had to determine the appropriate amount of costs to be awarded to the plaintiffs, who had applied for scale 2B costs of $27,000, along with disbursements of $8,303.51. Mr Just opposed the plaintiffs' claim for costs, arguing that they should not be awarded any costs.

The court reviewed the arguments made by Mr Just, which were largely repetitive of those raised during the trial, and which had already been rejected. The court noted that the general principle is that the party who fails in a proceeding should pay costs to the party who succeeds, as per rule 14.2(a) of the High Court Rules. However, the court also has the discretion to refuse to make an order for costs or reduce the costs otherwise payable under rule 14.7. In this instance, the court was not satisfied that any of the matters raised by Mr Just warranted a refusal or reduction of costs. The court found that the plaintiffs' claim for costs was reasonable and appropriate.

The court ordered that costs in the sum of $27,000, along with disbursements of $8,303.51, be awarded to the plaintiffs. This decision was based on the fact that the plaintiffs had succeeded in their action against Mr Just, and that the costs claimed were reasonable and in line with the scale set out in the rules. The court also noted that the matters raised by Mr Just were repetitive of those raised at trial and had already been rejected.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established