Managh as Liquidator of Dandelion Limited (in liq) v Morrison HC Napier CIV-2009-441-000522

[2011] NZHC 1268

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CIV-2009-441-000522

UNDER  The Companies Act 1993 and Property Law

Act 2007

IN THE MATTER OF     The liquidation of Dandelion Limited

BETWEEN  JOHN FRANCIS MANAGH AS LIQUIDATOR OF DANDELION LIMITED (IN LIQUIDATION) Applicant

AND  CHRISTOPHER WILLIAM MORRISON

& GREGORY MICHAEL MORRISON AS THE TRUSTEES OF THE C W MORRISON FAMILY TRUST

First Defendants

AND  CHRISTOPHER WILLIAM MORRISON

& PETER CLENNELL FENWICKE AS THE TRUSTEES OF THE C W MORRISON 1996 BUSINESS TRUST Second Defendants

Judgment:      4 October 2011 at 5:00 PM

JUDGMENT OF COURTNEY J

Solicitors:           Nowland Gordon & Associates, P O Box 70, Wellington 6011

Fax: [phone]

Counsel:             K P Sullivan, P O Box 5817, Wellington 6145

Fax: [phone]
M Kelly, P O Box 5844, Wellesley Street, Auckland

Fax: [phone]

DANDELION LTD V MORRISON HC NAP CIV-2009-441-000522 4 October 2011

[1]      Following my decision 5 September 2001 the liquidator of Dandelion has filed memoranda seeking costs on his successful application declaring that certain dispositions were voidable transactions in Dandelion’s liquidation.

[2]      Mr Kelly, for the defendants, accepts that costs should be paid.   However, although he accepts that costs are properly payable for steps 4.10, 4.17, 4.13 and

4.18, he resists the claim for steps 1, 7.1, 7.2 and 8.  He asserts that applying those steps would allow seven days for bringing the originating application and preparing for hearing which is excessive given that there was no statement of claim, the matter was dealt with on the affidavits without cross-examination and the arguments were confined to a relatively discrete area of law.

[3]      Mr Sullivan, for the liquidator, maintains that step 1 was appropriate because the liquidator was required to make the applications.  Further, he asserts that neither the issues nor the evidence required was straightforward.

[4]      I consider that step 1 was appropriate.  I note that Schedule 3 recognises that it might apply to an originating application and the lack of a statement of claim in itself should not detract from that.  Mr Kelly has suggested that step 25 should be the appropriate step adopted.   However, step 25 applies to specified originating applications.  Had it been intended to apply to this type of originating application, one might have expected it to have been specified.

[5]      Although the issues that were raised were discrete one could hardly say that the application was straightforward.   Nor do I accept that much of the affidavit evidence was unnecessary.  The fact that I did not refer to all of the evidence in my judgment did not mean that it was unnecessary or irrelevant.

[6]      I accordingly accept the calculation proposed by Mr Sullivan.  There will be an order for costs totalling $19,551.

[7]      There is no objection made to the claim for disbursements and I make an order in respect of the disbursements claimed of $1,689.20.

P Courtney J