NF Global Ltd (in liquidation) v Oberto - [2025] NZHC 1419

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-2594

[2025] NZHC 1419

UNDER The Companies Act 1993

BETWEEN

NF GLOBAL LTD (IN LIQUIDATION)

First Plaintiff

JOHN HOWARD ROSS FISK and CRAIG

ALEXANDER SANSON as liquidators of NF Global Limited (in liquidation) Second Plaintiffs

AND

CLAUDE SANDRO OBERTO

Defendant

Hearing: On the papers

Appearances:

T B Fitzgerald for the Plaintiffs B Henry for the Defendant

Judgment:

3 June 2025

JUDGMENT OF GARDINER J

(Costs)

This judgment was delivered by me on 3 June 2025 at 12.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:
Bell Gully, Auckland Shanahans, Auckland B Henry, Auckland

NF GLOBAL LTD (IN LIQUIDATION) v CLAUDE SANDRO OBERTO [2025] NZHC 1419 [3 June 2025]

Introduction

[1] On 14 November 2014, I declined Claude Oberto’s application for summary judgment/strike out against the first plaintiff, NF Global Ltd (NF Global). In the judgment, I expressed some preliminary findings as to costs, but invited further submissions from the parties. The plaintiffs now seek scale 2B costs against Mr Oberto. This is opposed.

Plaintiffs’ submissions

[2] The plaintiffs recognise that costs are typically reserved on unsuccessful applications for summary judgment sought by the defendant until final determination of the litigation. However, it takes the view the costs are justified here for two reasons.

[3] First, Mr Oberto’s application never had any prospect of success. Mr Oberto did not provide evidence to support his allegation that the customers were not customers of NF Global and NF Global did not owe obligations to customers in relation to the funds held in their accounts.

[4] Second, Mr Oberto’s application did not benefit the overall progress of the litigation. This was not a case where the application led to a clarification or refinement of issues for trial. This can be observed in the fact that the plaintiffs have not amended their claim following the judgment. The plaintiffs submit that the application put them to significant cost and delay.

Mr Oberto’s submissions

[5] Mr Oberto’s position is that costs should be reserved and fixed at a later stage. Mr Oberto maintains the statement of claim is deficient as the critical fact underlying the proceeding is that NF Global has creditors. He points out that the plaintiffs revealed in the August 2024 hearing that the liquidators have not undertaken the proof of debt process. Since the judgment, Mr Oberto has filed two further interlocutory applications aiming to determine whether there are in fact creditors, in the absence of which these proceedings are misconceived.

[6] Mr Oberto relies on my observation that his summary judgment application — and by extension, the new interlocutory orders sought — was instrumental to clarifying fundamental issues within the litigation. Mr Oberto submits that an amended statement of claim is an “inevitability”. Accordingly, it is only appropriate for costs to be reserved until the final determination of the proceeding.

Assessment

[7] The general approach following a plaintiff’s unsuccessful summary…

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.

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Details

Case: [2025] NZHC 1419
Decision Date: 3 June 2025

CaseChat Overview and Summary

NF Global Ltd (in liquidation), represented by its liquidators, brought proceedings against Claude Sandro Oberto. The plaintiffs sought to recover funds held by Oberto, claiming that he had improperly received them in his personal capacity rather than on behalf of NF Global. The dispute centred on whether Oberto owed NF Global funds that had been transferred to his personal account and if he was liable for any resulting losses. The case was heard and determined by Gardiner J in the High Court of New Zealand.

The central legal issue was whether costs should be awarded against Oberto following his unsuccessful application for summary judgment. The plaintiffs argued that costs were justified because Oberto's application was without merit and did not contribute to the progress of the litigation. Conversely, Oberto contended that costs should be reserved until the final determination of the case, arguing that his application was instrumental in clarifying fundamental issues.

Gardiner J considered that while the general approach is to reserve costs following unsuccessful summary judgment applications by defendants, each case must be assessed on its own facts. The judge found that Oberto’s application for summary judgment was unsuccessful because he failed to provide evidence that NF Global did not owe obligations to the customers in question. The judge also noted that Oberto’s application to strike out parts of the statement of claim was misconceived, as it relied on unproved facts. Ultimately, the judge concluded that Oberto’s application resulted in wasted time and cost and that it was appropriate to award costs against him.

The court ordered Oberto to pay the plaintiffs' costs of $8,604 plus disbursements of $110 on a scale 2B basis.

Orders