Oceanic Seafoods Limited v Silla Co Limited

[2014] NZHC 78

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV2013-404-003949 [2014] NZHC 78

BETWEEN  OCEANIC SEAFOODS LIMITED Applicant

ANDSILLA CO LIMITED Respondent

Hearing:                   7 February 2014

Appearances:           M N Edwards on record for applicant, seeking leave to withdraw

J K Goodall for respondent

Judgment:                7 February 2014

(ORAL) JUDGMENT OF ASSOCIATE JUDGE ABBOTT

Solicitors:

Wynyard Wood, Auckland

Veritas Law, Auckland

Counsel:

J K Goodall, Auckland

OCEANIC SEAFOODS LIMITED v SILLA CO LIMITED [2014] NZHC 78 [7 February 2014]

[1]      Oceanic Seafoods Ltd applied to this Court on 22 August 2013 to set aside a statutory demand issued by the respondent, Silla Co Ltd, seeking payment of the sum of US$2,409,945.37.  This sum represents amounts unpaid on two invoices rendered for the sale of tuna by the respondent to the applicant.

[2]      The essence of the application to set aside the demand was that the debt was owed by another party.  The respondent opposed the application on the grounds that the underlying contract was in fact between the parties in this proceeding.

[3]      The application was allocated a defended hearing today.  On the last working day (yesterday was a public holiday) Mr Edwards, as solicitor for the applicant, informed the Court that it had been placed into liquidation, and that the appointed liquidator had disclaimed this proceeding.

[4]      The  disclaimer  is  sufficient  to  excuse  any  appearance  on  behalf  of  the liquidator, but it does not necessarily determine this application.  Mr Edwards is on the record as solicitor for the applicant, but has no instructions.   The applicant is clearly not in a position to proceed.   I accept the submission of counsel for the respondent that the appropriate course is to strike out the application.

[5]      That leaves an issue of costs as a consequence of the striking out of the application.   The respondent seeks costs on a scale 2B basis (together with disbursements), by analogy with the provisions for costs following discontinuance.1

[6]      It is well established that the Court has control of all proceedings by or against a company once the company has gone into liquidation.2    This includes a determination of costs in the proceeding.3

[7]      I make the following orders:

1      Rule 15.23 of the High Court Rules.

2      Steel & Tube Co of New Zealand Ltd v JBL Construction Ltd [1973] 2 NZLR 30 at 32.

3      Applying the general principles under r 14.1, but also in applying Orakei Group (2007) Ltd v Doherty (No 2) (2008) ERNZ 505 (which dealt with an issue over costs following liquidation in the absence of a notice of discontinuance, albeit in the course of determining a different point). See too Krukziener v Commissioner of Inland Revenue (2011) NZTC 20-055.

(a)       The application is struck out.

(b)The applicant is to pay costs to the respondent on a scale 2B basis together with disbursements as fixed by the Registrar.

[8]      It now will be for the respondent to prove these costs together with the original debt in the liquidation of the applicant.

Associate Judge Abbott