Madsen-Ries v Petera - [2015] NZHC 2418

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-000103 [2015] NZHC 2418

UNDER the Companies Act 1993

IN THE MATTER

of Petranz Limited (in liquidation)

BETWEEN

VIVIEN JUDITH MADSEN-RIES AND DAVID STUART VANCE AS LIQUIDATORS OF PETRANZ LIMITED (IN LIQUIDATION)

FIRST PLAINTIFF

PETRANZ LIMITED (IN LIQUIDATION)

Second Plaintiff

AND

DARRELL WARREN KARANEIHANA PETERA

First Defendant

DIANA JOY PETERA Second Defendant

Hearing: On the papers

Appearances:

N H Malarao for plaintiffs
Defendants in person

Judgment:

5 October 2015

JUDGMENT OF LANG J

[as to recall of judgment and costs]

This judgment was delivered by me on 5 October 2015 at 2 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

MADSEN-RIES AND VANCE v PETERA [2015] NZHC 2418 [5 October 2015]

[1] On 24 March 2015, I delivered a judgment in which I found in favour of the plaintiffs against the defendants on several causes of action.1 The plaintiffs now seek an order recalling my judgment in order to deal with a claim for interest that I omitted to deal with in the substantive judgment. Mr Malarao for the plaintiffs also advises that the parties have been unable to reach agreement regarding costs, and asks that those be fixed by the Court.

[2] The defendants have failed to provide any submissions in relation to both outstanding issues. As a result, I am required to deal with those issues without their input.

The application for recall of judgment

[3] Mr Malarao rightly points out that the plaintiffs’ amended statement of claim dated 20 June 2004 sought interest under each cause of action. He also repeated the claim for interest in his closing submissions. I inadvertently overlooked this issue in the substantive judgment.

[4] There is no doubt that the Court has jurisdiction to recall a judgment where an issue such as interest has been inadvertently overlooked.2 Mr Malarao has referred me to several cases in which the courts have considered it appropriate to recall judgments where that has occurred.3

[5] I consider it appropriate to make an order under s 87 of the Judicature Act
1908 as sought by the plaintiffs. The judgment is recalled and amended to include interest at the prescribed rate on the sums in respect of which judgment has been entered against the defendants. In each case interest is to be payable from the date upon which Petranz Ltd went into liquidation.

1      Madsen-Ries and Vance v Petera [2015] NZHC 538.
2      Matua Finance Ltd v Bank of New Zealand HC Auckland CP490/04, 4 August 1995.
3      Brake v Boote (1991) 4 PRNZ 86; Levin v Shot Blast Services (Auck) Ltd HC Auckland CIV-
2012-404-433, 22 July 2013, and Vodafone New Zealand Ltd v M5 Investments Ltd HC Auckland CIV-2008-404-286, 14 October 2011.

Costs

[6] The plaintiffs were the successful parties. As a result, the defendants should be required to contribute to their costs.4 Ordinarily, costs in a case such as this would be calculated on a category 2B basis. Costs calculated…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Madsen-Ries v Petera

Details

AGLC: Madsen-Ries v Petera [2015] NZHC 2418
Case: [2015] NZHC 2418
Decision Date: 5 October 2015

CaseChat Overview and Summary

The case Madsen-Ries v Petera involved the plaintiffs, who were the liquidators of Petranz Limited, suing the first and second defendants, Darrell Warren Karaneihana Petera and Diana Joy Petera, over several causes of action. The defendants were sued over their conduct as directors of Petranz Limited, which had gone into liquidation. The court was required to decide whether the judgment should be recalled to address the omission of a claim for interest and to fix costs between the parties. The plaintiffs sought an order to recall the judgment to include interest on the sums for which judgment had been entered against the defendants. They also sought an order to fix costs between the parties. The defendants did not provide any submissions in relation to these issues.

The court found that it had the jurisdiction to recall a judgment where an issue such as interest had been inadvertently overlooked. The court considered it appropriate to recall the judgment and amend it to include interest at the prescribed rate on the sums for which judgment had been entered against the defendants. In relation to costs, the court found that the plaintiffs were the successful parties and that the defendants should be required to contribute to their costs. The court found that the defendants had failed to comply with directions of the Court, pursued unnecessary steps and/or arguments that lacked merit, failed to comply with an order for discovery and failed to admit facts, evidence, documents and legal arguments without just cause. However, the court did not consider these breaches to be sufficiently serious to warrant an uplift in costs as sought by the plaintiffs.

The court ordered that the judgment be recalled and amended to include interest at the prescribed rate on the sums in respect of which judgment had been entered against the defendants. In each case, interest is to be payable from the date upon which Petranz Ltd went into liquidation. The court also ordered that the defendants pay costs and disbursements calculated on a Category 2B basis for steps taken in both the High Court and District Court. The court did not require the defendants to pay increased costs to the plaintiffs.

Orders