Norrie v Time3 Global Limited - [2016] NZHC 2712

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2013-404-003305 [2016] NZHC 2712

UNDER the Companies Act 1993

IN THE MATTER OF

an application under sections 295 and 298

BETWEEN

MARK HECTOR NORRIE AS LIQUIDATOR OF PAKIRI INVESTMENTS LIMITED (IN LIQUIDATION)

Applicant

AND

TIME3 GLOBAL LIMITED Respondent

Hearing: On the papers

Counsel:

J P Nolen for the Applicant
R B Hucker for the Respondent

Judgment:

15 November 2016

JUDGMENT AS TO COSTS OF ASSOCIATE JUDGE CHRISTIANSEN

This judgment was delivered by me on
15.11.16 at 3:00pm, pursuant to
Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar
Date……………

MARK HECTOR NORRIE AS LIQUIDATOR OF PAKIRI INVESTMENTS LIMITED (IN LIQUIDATION) v
TIME3 GLOBAL LIMITED [2016] NZHC 2712 [15 November 2016]

[1] This case concerned a claim by Mr Norrie who as liquidator of Pakiri Investments Limited (Pakiri) issued a notice setting aside a transaction with the transfer of intellectual property to the respondent company (Time3 Global).

[2] In the High Court an order was made pursuant to s 295 of the Companies Act

1993 (the Act) directing the transfer of certain intellectual property from Time3

Global back to Pakiri. The Court of Appeal quashed that order and with that, the order that costs lie where they fall. The Court of Appeal remitted the proceeding back to the High Court for reconsideration of costs in accordance with the outcome of the Court of Appeal’s judgment.

[3] Costs memoranda have been received from Mr Hucker on behalf of Time3

Global and Mr Nolen on behalf of Mr Norrie.

[4] In essence, four issues are raised by those memoranda: (a) Who was the successful party?
(b)Is this an appropriate case for costs to be awarded against the liquidator in person?

(c) If so, should scale costs be increased or decreased?

(d)If costs are awarded, are there certain steps that should not be allowed?

Who was the successful party?

[5] Time3 Global claims it should be treated as the successful party in respect of both the s 295 and s 298 causes of action. For Mr Norrie it is argued the appeal was only partially successful – winning only three of the 10 grounds argued.

[6] It is clear from the decision of the Court of Appeal in Packing In Ltd (in liquidation) v Chilcott (2003)1 that matters of success are better assessed by a realistic appraisal of the end result.

[7] Mr Norrie had sought orders in the High Court under s 295 of the Act directing the transfer back of certain intellectual property and, in the alternative, an order under s 298 of the Act for compensation for the transfer of the property at an under value. In the end result and in the outcome of the Appeal Mr Norrie did not obtain either order.

[8] Time3 Global therefore is the successful party for the purposes of assessing costs claims.

Should costs be awarded against Mr Norrie, the liquidator in person?

[9] It is a longstanding principle that costs will not normally…

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 Norrie v Time3 Global Limited

Details

AGLC: Norrie v Time3 Global Limited [2016] NZHC 2712
Case: [2016] NZHC 2712
Decision Date: 15 November 2016

CaseChat Overview and Summary

Mark Hector Norrie, as liquidator of Pakiri Investments Limited, applied for an order to set aside a transaction involving the transfer of intellectual property to Time3 Global Limited. The application was made under sections 295 and 298 of the Companies Act 1993, seeking either the return of the intellectual property or compensation for its undervalue transfer. Initially, the High Court granted the order directing Time3 Global to transfer the intellectual property back to Pakiri. However, the Court of Appeal later quashed this order and remitted the proceeding to the High Court for reconsideration of costs in accordance with their judgment. The primary legal issues before the court were whether Time3 Global was the successful party, if costs should be awarded against Mr Norrie personally, if the scale of costs should be increased or decreased, and if certain steps should be disallowed in the costs claim.

After examining the arguments presented, the court determined that Time3 Global was the successful party as Mr Norrie did not achieve the orders he sought. The court rejected Mr Norrie's arguments that he should not be personally liable for costs, emphasizing that liquidators may be personally liable for costs if they are unsuccessful in proceedings brought in their own name. The court found that none of Mr Norrie's reasons for avoiding personal liability for costs were persuasive. Regarding the scale of costs, the court found that neither an increase nor decrease was warranted. Finally, the court disallowed certain steps in Time3 Global's costs claim, resulting in a reduction of the overall costs awarded.

The final orders of the court were that scale costs in the sum of $16,585.00, together with disbursements in the sum of $270.00, are awarded against Mr Norrie.

Orders