Olliver v Registrar of Companies

[2022] NZHC 1873

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-485-000730

[2022] NZHC 1873

UNDER

Section 370 of the Companies Act 1993

IN THE MATTER OF

An appeal by GREGORY MARTIN OLLIVER

Applicant

AND

DEPUTY REGISTRAR OF COMPANIES

Interested Party

Hearing:	On the papers
Judgment:	1 August 2022

JUDGMENT OF WYLIE J

(Costs)

This judgment was delivered by Justice Wylie On 1 August 2022 at 1.00 pm

Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

Solicitors/Counsel:

Crown Law, Wellington Keegan Alexander, Auckland

OLLIVER v DEPUTY REGISTRAR OF COMPANIES [2022] NZHC 1873 [1 August 2022]

Background

[1]                   I refer to my judgment issued on 10 June 2022.1 I there declined Mr Olliver’s application to adduce further evidence in relation to his appeal against a decision of the Deputy Registrar of Companies prohibiting Mr Olliver from holding office as a director or manager of any company for a period of four years. I noted in the judgment that Mr Conway, appearing on behalf of the Deputy Registrar, sought costs and I made various timetable directions in this regard.

[2]                   I have now received a memorandum from the Deputy Registrar of Companies. He seeks costs on a 2B basis in the sum of $8,484.50 and disbursements of $110.00.

[3]                   Mr Olliver, through his counsel, has advised that he does not intend filing a response.

Analysis

[4]                   The Deputy Registrar is not a party to the appeal. He was exercising an adjudicative function and he will be abiding the decision of the Court. Nevertheless, the broad discretion conferred by r 14.1 of the High Court Rules 2016 allows costs orders in favour of non-parties.2

[5]                   Here, the Deputy Registrar opposed Mr Olliver’s application to adduce further evidence when the appeal is heard. Mr Conway advises that the Deputy Registrar did so to preserve what is considered to be the integrity of the Registrar’s processes under the prohibition regime prescribed by the Companies Act 1993. In the course of the submissions advanced on the Deputy Registrar’s behalf, the Deputy Registrar highlighted the various minutes which he had issued. Those minutes were relevant to an issue raised by Mr Olliver, namely whether the Deputy Registrar’s processes met the requirements of the rules of natural justice. The Deputy Registrar also highlighted the statutory context and advanced various reasons why it was considered that leave would be inappropriate.

1      Olliver v Deputy Registrar of Companies [2022] NZHC 1368.

2      See Erwood v Maxted [2010] NZCA 93, (2010) 20 PRNZ 466 at [18] (decision later reversed in Erwood v Maxted [2011] NZSC 23, but point not addressed by Supreme Court); and Murren v Schaeffer [2018] NZCA 318 at [50].

[6]                   All matters in relation to costs are at the discretion of the Court.3 Nevertheless, the principles governing the exercise of the discretion are well established. The discretion is not unfettered. It is qualified by the applicable costs rules – rr 14.2 to

14.10 – and its application must be consistent with the established principles identified in those rules.4

[7]                   One of the principles applicable to the determination of costs is that a party who fails with respect to a proceeding or an interlocutory application should pay costs to the party who succeeds. Here, the Deputy Registrar was the successful party. Further, the Deputy Registrar raised his concerns with Mr Olliver prior to the application being filed. The application ultimately failed, in part for the reasons advanced by the Deputy Registrar in correspondence with Mr Olliver prior to the application being brought.

[8]                   I am satisfied that costs should be fixed on a 2B basis. That categorisation reflects the complexity and significance of the proceeding. I am satisfied that costs have been properly claimed by the Deputy Registrar and that an award of $8,484.50 accurately reflects the work undertaken, calculated on a 2B basis. Disbursements of

$110.00 reflect the actual costs incurred by the Deputy Registrar in filing his notice of opposition.

[9]                   One of the other principles applicable to the determination of costs is that they should be predictable and expeditious. Here, there is nothing to detract from this principle.

[10]               Accordingly, I award costs against Mr Olliver and in favour of the Deputy Registrar in the sum of $8,484.50 and disbursements in the sum of $110.00.

Wylie J

3      High Court Rules 2016, r 14.1.

4      Manukau Golf Club Inc v Shoye Venture Ltd [2012] NZSC 109, [2013] 1 NZLR 305 at [7] and [16].