RPS Construction Limited v Mainstream Electrical Limited

[2017] NZHC 3293

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-001864 [2017] NZHC 3293

UNDER	the Companies Act 1993
BETWEEN	RPS CONSTRUCTION LIMITED Applicant
AND	MAINSTREAM ELECTRICAL LIMITED Respondent

Hearing:	8 September 2017
Appearances:	No appearance for Applicant A J Steel for Respondent
Judgment:	22 December 2017

JUDGMENT OF ASSOCIATE JUDGE SARGISSON

This judgment was delivered by me on 22 December 2017 at 12.30 p.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date.......................................

Solicitors:

Lodder Law Ltd, Auckland

A J Steel, Auckland

RPS CONSTRUCTION LTD v MAINSTREAM ELECTRICAL LTD [2017] NZHC 3293 [22 December 2017]

[1]      This  decision  deals  with  costs.    The  respondent,  Mainstream  Electrical Limited, seeks an order for 2B costs of and incidental to its successful opposition to an application to set aside a statutory demand.  It also seeks disbursements.

Background

[2]      Mainstream  served  a  statutory demand  on  RPS  Construction  Limited  on

21 July 2017.  On 11 August 2017, RPS filed an application for an order to set aside the demand.  The application stated it was filed by a personal representative of RPS, Raine Selles.

[3]      The application was opposed.  It came before me on 8 September 2017, when there was no appearance for RPS.  On 11 September, I dismissed the application on the basis that it was made in breach of the Mannix rule; and in the minute I issued, I raised the question, for Mainstream’s response, as to whether in the circumstances it was appropriate to make an order for costs against RPS.

[4]      Counsel for Mainstream has filed a memorandum in response.  He submits it is appropriate to make such an order.  His reasons come down to the following:

(a)      Mainstream did not rely on the Mannix rule in support of its application for costs, or on the fact that the application to set aside was filed by someone purporting to be the personal representative of RPS.

(b)Rather, its essential argument was that the application was a nullity, as the application was filed and served outside of the time allowed in s 290.  It relied on Hartner Trustee Ltd v Colin MacKenzie Plastering Ltd,1  where the Court indicated the respondent may elect whether to

oppose the application as a nullity or else to take no steps.

1      Hartner Trustee Ltd v Colin MacKenzie Plastering Ltd (2001) 15 PRNZ 318 (HC) at [28].

[5]     I accept the submission that counsel has made in reliance on Hartner. Mainstream is not precluded from seeking costs where the application is dismissed on the grounds that it is a nullity.

[6]      To  the  extent  that  it  is  necessary  to  recall  that  part  of  my  finding  of

11 September 2017, based on the Mannix rule, I do so. Without wishing to contradict this, I note the following:

(a)      Counsel  placed  considerable  emphasis  on  the  fact  that  RPS’s application had been filed by someone who appeared not to be a solicitor, or indeed a director of RPS.

(b)In the further material filed, it appears that Ms Selles, who signed the application, is an Australian solicitor.  Though it is unclear whether or not she holds a New Zealand practising certificate, I accept it is sufficiently clear on the material now before the Court that Ms Selles was the authorised agent of RPS for the purpose of issuing the demand.

Result

[7]      Mainstream Electrical is entitled to costs in accordance with the statutory costs regime and the presumption in High Court Rule 14.2(1)(a).  The import of the rule is that the unsuccessful party must pay costs to the successful party.   Undoubtedly Mainstream is the successful party.

[8]      I make an order for costs in favour of Mainstream against RPS, on a 2B basis plus disbursements as fixed by the Registrar.

Associate Judge Sargisson