Petterson v Browne - [2015] NZHC 1950

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2014-409-000469 [2015] NZHC 1950

IN THE MATTER
of Sections 292-296 and 299 of the

Companies Act 1993

BETWEEN

DAVID ROSS PETTERSON, AS LIQUIDATOR OF POLYETHYLENE PIPE SYSTEMS LIMITED (IN LIQUIDATION)

Applicant

AND

DAVID CHARLES BROWNE Respondent

CIV2014-409-000900

IN THE MATTER of Sections 292-296 of the Companies Act

1993

BETWEEN DAVID ROSS PETTERSON, AS LIQUIDATOR OF POLYETHYLENE PIPE SYSTEMS LIMITED (IN LIQUIDATION)
Applicant

ANDDAVID BROWNE CONTRACTORS LIMITED AND DAVID BROWNE MECHANICAL LIMITED Respondents

Hearing: 14 August 2015 (Costs determined on the papers)

Counsel:

B Gustafson and L Van for Applicant
D J C Russ for Respondents

Judgment:

17 August 2015

COSTS JUDGMENT OF ASSOCIATE JUDGE MATTHEWS

Solicitors:
Kensington Swan, Auckland. Fletcher Vautier Moore, Nelson.

DAVID ROSS PETTERSON, as Liquidator of POLYETHYLENE PIPE SYSTEMS LIMITED (In Liquidation) v
DAVID CHARLES BROWNE [2015] NZHC 1950 [ 17 August 2015]

[1] By a judgment dated 29 April 2015 both these proceedings were dismissed. Costs were reserved. Submissions have now been received.

[2] The successful respondents seek costs. It is convenient to deal with each of the specific elements of their claim in turn, with reference to the applicant’s response.

Category

[3] The respondents say the proceedings were of average complexity and should be classified as within Category 2. The applicant agrees. Costs will therefore be in Category 2.

Allocation of band

[4] The respondents say that comparatively large amounts of time were required for some steps in these proceedings. For those steps, band C should apply and for procedural steps band B should apply.

[5] The applicant agrees band C should apply in relation to preparation of affidavits, and preparation for the hearing.

[6] In my opinion band C should apply to both these categories, and for the hearing itself. I also agree that band B should apply to the four case management conferences.

Result of assessing costs in Category 2 and in bands B and C as allocated above

[7] Both counsel agree that if costs are assessed on this basis, and these proceedings are treated as one proceeding, a total of 13.6 days of costs should be allocated. This would equate to an award of costs to the respondents in the sum of
$27,064.

A breakdown of this assessment is:

Filing notice of opposition and affidavits: band C : 6 days

Case management conferences: Preparation of written submissions: Appearances at hearing:

band B : band C : band C :

1.6 days

3 days

3 days

13.6 days

Should this case be treated as one proceeding for the purposes of costs?

[8] Two separate proceedings were filed, proceeding 469 on 14 July 2014 and proceeding 900 five months later on 17 December 2014. By the time the 900 proceeding was filed, the respondents on the 469 proceeding had filed a notice of opposition and two affidavits in opposition. Case management conferences had been held, directions made for a fixture, and submissions prepared and filed. The 900 proceeding was foreshadowed in November. At the…

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 Petterson v Browne

Details

AGLC: Petterson v Browne [2015] NZHC 1950
Case: [2015] NZHC 1950
Decision Date: 17 August 2015

CaseChat Overview and Summary

In the High Court of New Zealand, Associate Judge Matthews was tasked with determining the costs associated with two separate proceedings filed by David Ross Petterson, as liquidator of Polyethylene Pipe Systems Limited (in liquidation), against David Charles Browne and related companies. The initial proceedings, filed on 14 July 2014 and 17 December 2014, sought to set aside certain transactions on the basis that they were voidable. The court was required to decide the classification and banding of the costs, whether the proceedings should be treated as one for cost purposes, and whether an uplift in scale costs was appropriate. The court also had to determine the incidence of the cost award.

The court found that the proceedings were of average complexity and should be classified as within Category 2. Both parties agreed that band C should apply to certain steps and band B to the case management conferences. The court assessed the total costs at 23.21 days, resulting in an award of $46,187.90, including a 10% uplift for unnecessary arguments. The court determined that the proceedings should be treated as two separate cases for cost purposes due to the distinct issues involved. Finally, the court held that Petterson, as the plaintiff in each case, was personally liable for the costs award.

The final orders of the court were that Petterson was to pay the costs of $46,187.90, together with such disbursements as may be fixed by the Registrar, in the absence of agreement.

Orders