Nicholson v Lowther - [2024] NZHC 3240

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-000678

CIV-2024-404-001090 [2024] NZHC 3240

BETWEEN
GRANT NICOLSON

Plaintiff

AND

ISAAC LOWTHER

First Defendant

STEVEN KHOV
Second Defendant

KIERAN JONES

Third Defendant

Hearing: 10 October 2024

Appearances:

G Jindal for the Plaintiff

K Puddle for the Defendants

Judgment:

5 November 2024

JUDGMENT OF GORDON J

This judgment was delivered by me
on 5 November 2024 at 11 am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors: TWA Legal, Auckland
Ormiston Legal, Auckland

NICOLSON v LOWTHER [2024] NZHC 3240 [5 November 2024]

[1] This is a decision on applications brought by the plaintiff, Grant Nicolson, and one application brought by the defendants.

[2] The proceedings concern the liquidation of a company, Blue Bins Ltd (in liq) (Blue Bins). Mr Nicolson is the director and majority shareholder of Blue Bins. Blue Bins was in the business of rubbish skip hire and rubbish removal.

[3] After receiving professional advice, on 28 February 2024 Mr Nicolson resolved in his capacity both as director and a shareholder to put Blue Bins into liquidation. In doing so, he resolved that Blue Bins was unable to continue its business by reason of its liabilities.

[4] It seems that Mr Nicolson subsequently had a change of heart about his decision to put Blue Bins into liquidation. He has filed a statement of claim in the proceeding CIV-2024-404-678 (678 proceeding) seeking orders: terminating the liquidation of Blue Bins under s 250 of the Companies Act 1993; reinstating Blue Bins “on the business directory” under s 329 of the Companies Act; and a range of orders against the liquidators on the basis that they have breached provisions in the Companies Act and on the basis that one of their employees acted without a liquidator’s practice licence.

[5] The second and third defendants, Steven Khov and Kieran Jones, are the liquidators of Blue Bins and directors of Khov Jones Ltd, a chartered accounting practice specialising in insolvency and forensic accounting. Mr Khov and Mr Jones were appointed as liquidators on a joint and several basis. The first defendant, Isaac Lowther, is an employee of Khov Jones Ltd.

[6] Mr Nicolson acted for himself when he filed the 678 proceeding. Since then he has filed a number of interlocutory applications in that proceeding, including those that were for hearing before me. One of those interlocutory applications in the 678 proceeding is an application dated 10 May 2024 for orders against Mr Khov and Mr Jones under the Contempt of Court Act 2019. Mr Nicolson had earlier filed another application under the Contempt of Court Act which he styled as an originating application seeking orders against Mr Khov, Mr Jones and Mr Puddle, counsel for the

defendants. The originating application was treated as a separate proceeding and given the file number CIV-2024-404-1090 (1090 proceeding).

[7] Mr Nicolson continued to act on his own behalf until shortly before the hearing when…

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 Nicholson v Lowther

Details

AGLC: Nicholson v Lowther [2024] NZHC 3240
Case: [2024] NZHC 3240
Decision Date: 5 November 2024

CaseChat Overview and Summary

The case of Nicholson v Lowther involved applications from both the plaintiff, Grant Nicolson, and the defendants, Steven Khov, Kieran Jones, and Isaac Lowther. Nicolson sought to terminate the liquidation of Blue Bins Ltd (in liq) and reinstate it on the business directory, among other orders. The defendants filed an application for security for costs, which was the primary issue considered by the Court. The Court found that Nicolson's claims lacked merit and that his conduct in the litigation was unreasonable, leading to an order for security for costs in the amount of $99,734.70. The Court also refused Nicolson's applications for consolidation of proceedings, contempt orders, and termination of the liquidation. The Court did not grant the defendants' suggestion for an extended order under the Senior Courts Act 2016. Costs were reserved for further submissions.

Orders