Sisson v Official Assignee in bankruptcy in the estate of Hampton

[2017] NZHC 183

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2016-409-000185 [2017] NZHC 183

BETWEEN

THERESE ANNE SISSON AS TRUSTEE

OF THE ANOLBE FAMILY TRUST Plaintiff

AND

THE OFFICIAL ASSIGNEE IN BANKRUPTCY IN THE ESTATE OF DAVID JOHN HAMPTON

First Defendant

COMMISSIONER OF INLAND REVENUE

Second Defendant

Hearing:	13-16 February 2017
Appearances:	Plaintiff Appears In Person G Slevin for First Defendant S Kinsler, P J Shamy and S L Russell for Second Defendant
Judgment:	16 February 2017

ORAL JUDGMENT OF GENDALL J

[1]      Hearing  of  the  plaintiff’s  application  seeking  a  declaration  as  to  the ownership of 67 Augusta Street, Christchurch, began on Monday last along with other related proceedings.  It is now the fourth day of the hearing of all these matters, being 16 February 2017.

[2]      This morning a notice of discontinuance of this proceeding CIV-2016-409-

185 from the plaintiff Therese Anne Sisson has been filed in this matter.  Leave to discontinue this  proceeding is  now granted.    It  is  noted the proceeding is  now

discontinued.

SISSON v OFFICIAL ASSIGNEE [2017] NZHC 183 [16 February 2017]

[3]      Insofar as costs on the discontinuance are concerned, the first defendant the Official Assignee notes that in the notice of discontinuance there is an agreement from David John Hampton, the undischarged bankrupt, to an award of costs being made against him as a non-party on a category 2B basis.

[4]      Before me, counsel for the Official Assignee indicated that as part of the arrangements  resulting  in  the  notice  of  discontinuance  the  Official  Assignee’s position on costs was that she would simply rely upon an award of costs on a 2B basis being made against the non-party Mr Hampton.  An order to this effect is to follow.

[5]      So far as costs for the second defendant the Commissioner of Inland Revenue are concerned, counsel for the Commissioner indicated that these would be sought on the proceeding and the discontinuance both against the plaintiff Ms Sisson and the non-party Mr Hampton.

[6]      On the question of costs therefore I now make the following orders and directions:

(a)      An order is made that the non-party David John Hampton is to pay costs on a category 2B basis together with disbursements approved by the Registrar to the first defendant the Official Assignee with regard to all matters concerning this proceeding CIV-2016-409-185.

(b)There  is  to  be  no  order  made  as  to  costs  against  the  plaintiff Therese Anne  Sisson  in  favour  of  the  first  defendant  the  Official Assignee.

[7]      So far as costs sought by the Commissioner of Inland Revenue are concerned, these are sought, as I have noted, against both the plaintiff Ms Sisson and the non- party Mr Hampton.  In relation to that application for costs the following directions are now made:

(a)      By  24  February  2017  counsel  for  the  Commissioner  of  Inland Revenue is to file and serve submissions in support of her application for an order for costs and disbursements against both Ms Sisson and Mr Hampton.

(b)By 10 March 2017 both Ms Sisson and Mr Hampton are to file and serve their submissions in reply to the Commissioner’s submissions seeking costs against them.

(c)      By 17 March 2017 the Commissioner is to file and serve any reply submissions she may wish.

(d)The Registrar is then directed to set that costs matter down for hearing along  with  the  other  costs  matters  which  are  effecting  these  and related parties (one half day is allowed) at the first available and suitable date.

...................................................

Gendall J

Addendum

[8]      Also on 16 February 2017 before this proceeding CIV-2016-409-185 was discontinued I made a further order regarding the lifting of a current freezing order affecting proceeds of sale of the property at 67 Augusta Street, Christchurch.  For the avoidance of any doubt I now note and confirm the terms of this order which is now made as follows:

An order is made lifting the current freezing order over the proceeds of sale of 67 Augusta Street, Christchurch, and all interests thereon held in the Official Assignee’s trust account in the bankrupt estate of David John Hampton.

...................................................

Gendall J

Solicitors:

Lane Neave, Christchurch
Phillip Shamy, Christchurch

Meredith Connell, Christchurch

Copy to Ms Sisson