Rosebud Corporate Trustee Limited v Bublitz - [2014] NZHC 2592

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2013-404-000899 [2014] NZHC 2592

BETWEEN
ROSEBUD CORPORATE TRUSTEE

LIMITED Plaintiff

AND

PAUL NEVILLE BUBLITZ First Defendant

CHRISTOPHER GIL COOK Second Defendant

HUNTER GILLS ROAD LIMITED (in liquidation)

Third Defendant

Hearing: 28–31 July and 1 August 2014

Appearances:

A Swan for the Plaintiff
J K Goodall for the First and Second Defendants
S Barter for the Third Defendant

Judgment:

22 October 2014

[COSTS] JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie on 22 October 2014 at 2.00 pm
Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

ROSEBUD CORPORATE TRUSTEE LIMITED v BUBLITZ & ORS [2014] NZHC 2592 [22 October 2014]

Introduction

[1] I refer to my reserved judgment issued on 25 August 2014. I concluded that the Rosebud Trust was a sham trust from the outset, that Mr Nielsen did not enter into the “Hunter Sterling” agreement as agent or trustee for the Rosebud Trust, but rather, in his own right, and that therefore, such property as Mr Nielsen had prior to the “Hunter Sterling” agreement, or that he acquired under the agreement, vested in the Official Assignee. I further found that Mr Nielsen could not, therefore, assign the “Hunter Sterling” agreement to Rosebud Corporate Trustee Limited, and that that company had no standing to sue on the buyout agreement. I held that the defendants were entitled to their reasonable costs and disbursements, and directed that memoranda be filed in that regard.

[2] I received an application for costs on behalf of the first defendant, Mr Bublitz, and the second defendant, Mr Cook. They seek costs on a 2B basis. They also seek that a costs order made by Associate Judge Christiansen on
6 September 2013 be reversed. Further, the first and second defendants seek costs in regard to two discovery applications which were filed in the proceedings, and costs for serving a subpoena on Mrs Nielsen. They also seek disbursements in the sum of
$2,479.20.

[3] The first and second defendants in their memorandum observe that the plaintiff company is unlikely to be in a position to meet any costs award without assistance, and they seek the leave of the Court to file an interlocutory application for non-party costs against Mrs Nielsen and Mr Whitney.

[4] The third defendant, Hunter Gills Road Limited (in liquidation), also seeks costs on a 2B basis. In addition, it seeks disbursements of $1,220. Initially, it also sought leave to seek costs against Mrs Nielsen and Mr Whitney. Subsequently, it resiled from that request, and it now simply seeks costs against the plaintiff company.

[5] No memorandum has been filed on behalf of the plaintiff company. Mr Swan, who acted on its behalf at the hearing, has advised that he has no instructions regarding costs, and that he is not in a position to file a memorandum.

Analysis

[6] First, in my view, it is appropriate to set aside the costs order made by

Associate Judge Christiansen.

[7]…

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.

Keep reading for free

Create a free CaseChat account to read Rosebud Corporate Trustee Limited v Bublitz and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] NZHC 2592
Decision Date: 22 October 2014

CaseChat Overview and Summary

Rosebud Corporate Trustee Limited initiated legal proceedings against Paul Neville Bublitz, Christopher Gil Cook, and Hunter Gills Road Limited, seeking to enforce a buyout agreement. The dispute centred around the validity of the trust and the assignment of the agreement. The case was heard in the High Court of New Zealand, Auckland Registry. The defendants argued that the trust was a sham and that the plaintiff had no standing to sue. The court was required to decide whether the trust was valid, whether the plaintiff had the authority to enforce the agreement, and the appropriate costs to be awarded.

Justice Wylie concluded that the trust was indeed a sham and that the plaintiff had no standing to sue. The court set aside the earlier costs order made by Associate Judge Christiansen, which had awarded costs against the defendants in their unsuccessful application for summary judgment. Justice Wylie found that it was appropriate to reverse the costs order given the outcome of the substantive proceedings. The court awarded costs to the defendants for specific steps taken during the substantive proceedings, excluding those related to the summary judgment application. The court declined to grant leave to the defendants to bring costs applications against non-parties, Mrs Nielsen and Mr Whitney, as there was no requirement to seek leave under the High Court Rules.

Justice Wylie awarded costs of $45,372 to the first and second defendants and $31,044 to the third defendant, along with disbursements of $1,150 and $1,220 respectively. The plaintiff was directed to pay these costs. The court's final orders included the reversal of the previous costs order, the award of costs and disbursements to the defendants, and the denial of leave to bring costs applications against non-parties.

Orders