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 judgment application will typically be to reserve costs rather than make them costs in the proceedings.1 However, there is no settled practice in respect of costs following unsuccessful defendants’ summary judgment applications.2 Each case will turn on its own facts.3

[8]    Mr Oberto’s application for summary judgment was unsuccessful because he did not meet the onus on him of proving that none of the plaintiffs’ causes of action can succeed. Specifically, he did not put up evidence showing that NF Global did not owe payment platform/investment service customers legal obligations in relation to the funds held in the accounts, and that the actual legal arrangements in relation to the funds were solely between the customers and UK entities.

[9]    Mr Oberto’s late alternative application to strike out parts of the statement of claim was misconceived. It relied on unproved facts, when an application to strike out all or part of a pleading proceeds on the assumption that the facts pleaded in the statement of claim are true.

1      NZI Bank Ltd v Philpott [1990] 2 NZLR 403 (CA) at 406–407.

2      Miah v National Mutual Life Association of Australasia Ltd [2016] NZCA 590, [2017] 2 NZLR 241 at [61], n 39.

3      See Schmidt v Registrar-General of Land [2015] NZHC 2438, (2015) 22 PRNZ 794 (costs reserved); EBS v CAS [2014] NZHC 2929 (costs reserved); Miah v National Mutual Life Association of Australasia Ltd, above n 2 (costs fixed but not payable); Suharnan v Brookfields, [2013] NZHC 586, (2013) 22 PRNZ 790 (costs awarded to plaintiff where the unsuccessful strike-out and summary judgment applications covered essentially the same ground); and Judge v Dempsey [2014] NZHC 2864 (costs awarded to plaintiff in respect of unsuccessful defendant’s summary judgment application).

[10]   While Mr Oberto was unsuccessful in his summary judgment application as a matter of proof, I considered that  the  nature  of  the  legal  relationship  between  NF Global and the payment platform and investment service customers was unclear.

[11]   On the basis that the application served a purpose in terms of testing the competing arguments on this critical issue, I expressed the preliminary view that costs should lie where they fall.

[12]   However, I also acknowledged the competing argument that it should have been apparent to Mr Oberto before he brought his application that the application would be unsuccessful because the evidence filed patently did not prove his case.

[13]   Having considered the submissions and reflected further, I consider that costs should be awarded against Mr Oberto and payable now.

[14]   While there is, in my view, uncertainty around the legal status of NF Global’s customers and specifically whether they are creditors, summary judgment and/or strike out was not the correct procedure to clarify this critical issue. An application for strike out or summary judgment is appropriate only in cases where there is clear legal impediment to liability, or where there is a complete and incontrovertible answer on the facts. Mr Oberto did not have the evidence to support his summary judgment application and in places his evidence contradicted his own application. His application for strike out was conceptually flawed. On that basis, the application resulted in wasted time and cost.

Result

[15]   I order Mr Oberto to pay the plaintiffs’ costs on a 2B basis of $8,604 plus disbursements of $110.

Gardiner J