Stuart v Lightning Cleaning Services Limited

[2018] NZHC 862

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KOTI MATUA O AOTEAROA TAMAKI MAKAURAU ROHE

CIV-2017-404-971

[2018] NZHC 862

UNDER

The Companies Act 1993

BETWEEN

GORDON JAMES STUART
Plaintiff

AND

LIGHTNING CLEANING SERVICES LIMITED
First Defendant

LUKE TIMOTHY ATTARD

Second Defendant

Hearing:

14 March 2018

Appearances:

D J Chisholm QC for Plaintiff

No appearance by or on behalf of First Defendant Second Defendant in person

M C Black as Amicus Curiae

Judgment:

30 April 2018

JUDGMENT OF POWELL J

This judgment was delivered by me on

30.04.18 at 4 pm, pursuant to

Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Burton Partners, Auckland

Counsel:D Chisholm QC, Auckland M C Black, Auckland

STUART v LIGHTNING CLEANING SERVICES LIMITED & Anor [2018] NZHC 862 [30 April 2018]

[1]                  On 15 November 2017 the second defendant, Luke Attard, was committed for contempt of court. Specifically, Hinton J determined that Mr Attard was in breach of orders made by Toogood J on 2 October 2017, and recorded:

[8]        I gave Mr Attard the opportunity to address me. While he maintained that he had provided the information sought, and raised various other extraneous arguments which I told him I was not prepared to deal with, it was clear on questioning him that he had not in fact provided the information ordered. He confirmed that he had access by way of his phone to electronic records of the bank statements sought and so could provide them today. He indicated that he might provide them to me, but he was not prepared to provide them to the plaintiff, nor for that to happen via the documents first being vetted by me. In short, Mr Attard seeks to argue amongst other things that the information has been provided but in a far more convoluted way than the manner actually ordered and without the documentary proof which is clearly required, and more to the point has been ordered.

[9]        I gave Mr Attard the opportunity to confirm that he would provide to Mr Chisholm today at a minimum the bank statements for the relevant period for the two entities, thereby avoiding committal for contempt. He made it clear he was not prepared to do this and I therefore made an order that he be committed for contempt, to be brought back before me tomorrow morning at

10.00 a.m.

[2]                  Mr Attard remained in custody until the following day when, following a second appearance before Hinton J and a second refusal to provide the relevant information, he belatedly agreed to provide the bank statements referred to in the orders, with leave being reserved for the plaintiff to confirm whether any further compliance with the orders was required.

[3]                  Mr Chisholm QC as counsel for the plaintiff, Gordon Stuart, subsequently confirmed that no further information was sought in relation to the 2 October 2017 orders, with the result that the proceedings were adjourned to the present hearing for the purpose of determining the penalty for Mr Attard’s contempt of Court.

[4]                  At the hearing before me Mr Chisholm did not seek any further period of imprisonment for the contempt, but with reference to relevant legal authority submitted the following orders were appropriate:

(a)a fine of $10,000 with 50 per cent directed to be paid by the Registry to Mr Stuart;

(b)that Mr Attard pay Mr Stuart’s costs and disbursements on a global basis in the sum of $20,000.

[5]                  Mr Attard opposed the orders sought. He submitted that the orders made by Toogood J on 2 October 2017 were not necessary, had not been authorised by the liquidators of the first defendant, Lightning Cleaning Services Limited (“Lightning”), and that no hearing had taken place before he had been found in contempt. In addition Mr Attard contended that the orders had been based on misleading information provided by Mr Stuart, who had himself breached his substantive obligations to Mr Attard.

[6]                  Submissions were also provided by the amicus, Mr Black, who while acknowledging the “full and comprehensive history provided by Mr Chisholm QC” noted that Mr Attard’s position had not been helped by the fact that he was not represented by counsel throughout the relevant period, and that at different times orders had been made when he was not present in Court. Mr Black also noted that previous cost awards against Mr Attard in this proceeding should not drive any penalty for contempt, and submitted, with reference to relevant authorities, that in determining any penalty:

… [T]he court should have regard to the nature and gravity of any breach and the proportionality of the breach in relation to the prejudice to the applicant, the seriousness of any penalty and the demands on court time.

[7]                  Mr Black went on to note that the Court should consider Mr Attard’s personal circumstances including the fact that he suffers from bowel cancer (although currently in remission) and has also  had  some  mental  health  issues,  namely  depression.  Mr Black also questioned Mr Attard’s ability to meet any penalty ordered by the Court, although Mr Attard subsequently and specifically confirmed that he did not seek to rely upon this ground. Finally, it was Mr Black’s submission that:

… [The] quantum sought to be imposed as a penalty to be paid by Mr Attard totalling $30,000 (excluding other outstanding court orders that remain unpaid of at least $16,927.75) is arguably disproportionately high considering that he ultimately did cooperate, agree and ensure that he fully complied with the orders on and following the 16 November 2017 hearing before Hinton J.

[8]                  The present proceeding differs significantly from other recent cases relating to contempt.1 In those cases much of the analysis was concerned with whether there had been a contempt, whereas in the present case there can be no doubt that Mr Attard was in contempt of court in relation to the 2 October 2017 orders. This conclusion was reached by no fewer than three Judges in different decisions.2 The sole issue is therefore what penalty and/or costs should be imposed with regard to Mr Attard’s contempt.

The Circumstances of the Contempt

[9]                  Mr Attard’s contempt arose in the context of proceedings brought by Mr Stuart seeking the winding up of Lightning on just and equitable grounds. In the course of those proceedings, on 25 August 2017 orders were made by Toogood J restraining Lightning, together with Rapid Group NZ Limited (“Rapid Group”) and Mr Attard or their agents or employees from “disposing of, dealing with, or diminishing the value of any assets of [Lightning], in particular the proceeds of sale of [Lightning’s] assets”.

[10]              At the same time Toogood J made an ancillary order that Mr Attard swear an affidavit within three working days of service, giving full particulars of any asset sales of Lightning including the agreements for sale and purchase and settlement statements and particulars of the proceeds of sale received and expenses incurred, and any payments made out of the proceeds of the sale of any assets. He also ordered that the whereabouts of the proceeds of sale be disclosed and any payments made by or on behalf of Lightning to Mr Attard or Rapid Group or their agents be identified. Finally, Toogood J ordered that those proceeds of sale be held by Lightning.

[11]              When Mr Attard did not provide the affidavit required, upon the application of Mr Stuart the file came before Muir J on 4 September 2017.   Muir J noted that     Mr Attard was “in contempt of the orders of this court”. Muir J directed Mr Attard to comply with the ancillary order of Toogood J dated 25 August 2017 by 5 pm Thursday 7 September 2017, noting that unless he did so:

1      See for example Solicitor-General v Krieger [2014] NZHC 172, Grant v Bhana [2016] NZHC 2755, Grant v Grewal [2016] NZHC 1564 and Zhang v King David Investments Ltd [2016] NZHC 3018.

2 See [14] to [16] below.

(a)Mr Attard would expose himself to “orders of this Court in contempt”; and

(b)his opposition to the application placing Lightning into liquidation would be struck out.

[12]              At this point Mr Attard did file a range of documents which provided some information about the affairs of Lightning, but which did not comply with terms of the ancillary orders of 25 August 2017. As a result the file came before Whata J, who appointed interim liquidators to Lightning and extended the time for Mr Attard to comply with the ancillary orders, to 5 pm on Thursday 14 September 2017. When this deadline came and went the file came back before Toogood J on 18 September 2017, a hearing at which Mr Attard not only attended but gave evidence and was cross- examined by Mr Chisholm.

[13]              It is clear from the transcript of that hearing that Toogood J considered the ancillary order of 25 August 2017 had not been complied with by Mr Attard. Further issues with regard to the distribution of the proceeds of sale of Lightning, including the payment of $70,000 from Lightning to the LWLC Plus Trust (a family trust controlled by Mr Attard), were  also  raised  following  the  cross-examination  of  Mr Attard. At the conclusion of the evidence given by Mr Attard the proceeding was adjourned until 4 pm the same day to enable Mr Attard to repay the $70,000 discussed at the hearing back to Lightning, following which the hearing was to resume. In the event, although Mr Attard made the agreed payment, he did not return to the Court at 4 pm. In his absence and following discussion between Toogood J and Mr Chisholm, liquidators were appointed to Lightning and rather than finding Mr Attard in contempt of the 25 August 2017 ancillary order, it was agreed that further additional ancillary orders were needed to identify what had happened to the proceeds of sale of Lightning’s business.

[14]              In the event the additional ancillary orders discussed on 18 September 2017 were not issued until 2 October 2017 and provided that:

… in addition to the order dated 25 August 2017 that the second defendant, Luke Timothy Attard, swear an affidavit by 5 October 2017 giving full particulars of and/or exhibiting the following information:

(i)   In respect of the LWLC Plus Trust, all payments made from the $70,000 proceeds of sale received by LWLC Trust Plus from the first defendant from 21 July 2017 to the date of swearing of the affidavit. The whereabouts of proceeds of sale still held by the LWLC Plus Trust must still be disclosed. The LWLC bank statements and credit card statements for the relevant period must be attached to the affidavit and the recipients of payments from the proceeds of sale must be identified by Mr Attard.

(ii)   In respect of Rapid Group NZ Limited all payments made from the proceeds of sale received by Rapid Group NZ Limited from the first defendant must be disclosed whether being part of the $95,000 paid direct by the first defendant to Rapid Group NZ Limited or received indirectly by Rapid Group NZ Limited, for example through LWLC Plus or any other party. The whereabouts of proceeds still held by Rapid Group NZ Limited must be disclosed. The Rapid Group NZ Limited bank statements for the relevant period must be attached to the affidavit and the recipients of payments from the proceeds of sale by Rapid Group must be identified by Mr Attard.

(iii)    In respect of Luke Timothy Attard personally, all payments from the proceeds of sale received by Mr Attard from the first defendant whether directly, for example payments to Mr Attard’s personal credit card accounts or indirectly for example through Rapid Group NZ Limited and/or the LWLC Plus trustees.  The  proceeds  of  sale  still  held  by Mr Attard personally must be disclosed. Mr Attard’s bank statements and credit card account bank statements for the relevant period must be attached to the affidavit and the recipients of payments from the proceeds of sale made by Mr Attard must be disclosed by him.

[15]              A copy of the 2 October 2017 ancillary orders was served on Mr Attard at 2.04 pm on 4 October 2017. When the 2 October ancillary orders had not been complied with, by 9 October 2017, the plaintiff made a further application for the arrest and committal of Mr Attard for breaching both the 25 August 2017 and 2 October 2017 orders.

[16]              This application came before Gordon J on 11 October 2017. Gordon J noted that Mr Attard had failed to comply with orders on 25 August 2017, 4 September 2017, 13 September 2017, and 2 October 2017 and as a result was “contemplating holding Mr Attard in contempt of court for his failure to comply with the order Toogood J made on 2 October 2017.” Her Honour Gordon J directed that the matter be called again on 13 October 2017 and confirmed by minute:

[6]If Mr Attard takes no steps to comply with the 2 October 2017 order  of Toogood J and/or fails to appear, on Friday 13 October 2017 at 2.15 pm I will issue a warrant for his arrest at that time.

[17]              In the event, while Mr Attard filed a further memorandum, he neither complied with the 2 October 2017 ancillary orders nor did he appear in Court on 13 October 2017. As a result, while noting the matters raised by Mr Attard in his memorandum, on 13 October 2017 Gordon J confirmed that she was “concerned with the lack of compliance in relation to the order of Toogood J as referred to in my minute on 11 October 2017”. Gordon J accordingly ordered that a warrant of arrest issue subject to the following orders:

(a)The warrant of arrest is to lie in court until 5 pm on Thursday 2 November 2017.

(b)If Mr Attard purges his contempt by 5 pm on Thursday 2 November 2017 by complying with the orders of Toogood J, the arrest warrant will be cancelled. I have given Mr Attard the benefit of an extended period to comply having regard to his medical certificate.

(c)If Mr Attard does not purge his contempt by 5 pm on Thursday 2 November 2017 he will be arrested and brought before the Court for the Court to consider whether he should be committed for contempt.

(d)I direct that a copy of this minute be served as a matter of priority by the court at Mr Attard’s known email address or addresses and I direct the plaintiff (with the agreement of Mr Chisholm QC) to use his best endeavours to serve Mr Attard personally again as a matter of priority.

[18]              Having been served with a copy of the minute after it was left at his address on 24 October 2017, Mr Attard filed a further memorandum with the Court, but still did not comply with the 2 October 2017 ancillary orders. As a result the file came before van Bohemen J, who issued a minute in the following terms:

[1]        I have read the memorandum of Mr Attard dated 2 November 2017 and the memorandum of the same date filed in response by Mr Chisholm QC, counsel for the plaintiff.

[2]        The burden of Mr Attard’s memorandum appears to be that because on 20 September 2017 Toogood J vacated the hearing set for 9 and 10 October 2017 for this matter and advised Mr Attard that issues Mr Attard had raised in his memorandum dated 20 September 2017 were not at issue in this proceeding and would need to be raided in other proceedings, somehow the current proceeding was at an end so that there was no jurisdiction for the orders made by Toogood J on 2 October 2017. That is plainly wrong. The current proceeding remains on foot and the orders by Toogood J remain in effect.

[3]        The other matters raised by Mr Attard are not relevant to Mr Attard’s compliance with the orders made by Toogood J on 2 October 2017.

[4]        Mr Attard has still not complied with the orders made by Toogood J on 2 October 2017.

[5]        Since Mr Attard has not purged his contempt as required by Gordon J in her Minute of 13 October 2017, the arrest warrant ordered by Gordon J in that Minute will issue at 5 pm today, Thursday, 2 November 2017.

[19] There matters remained until on 15 November 2017 Mr Attard attended the Court voluntarily, at the same time providing a further memorandum regarding the further interlocutory orders, which also included a copy of document entitled “memorandum in support of application to rescind and additional orders”. Upon his arrival at the Court Mr Attard was arrested by the bailiff and brought before Hinton J as Duty Judge, with the result as set out at [1] above. When the proceedings were called at 10 am on the following day Hinton J recorded:

[1]        As directed yesterday, Mr Attard was brought back to Court this morning.

[2]        I asked him if he intended to provide at least the bank statements of the two entities referred to in my Minute yesterday. He said he was not prepared to do so unless he “has a hearing”.

[3]        Mr Chisholm volunteered that if Mr Attard was concerned with regard to confidentiality as he had said the day before, Mr Attard could provide the bank statements to Mr Chisholm and the liquidator, and they would give undertakings not to show Mr Stuart the statements at all.

[4]Mr Attard was not prepared to comply on that basis either.

[5]        I then made an order appointing Mr Royden Hindle as amicus and remanded Mr Attard to the Court cells to be brought back before me at 3.30 pm today, in anticipation of Mr Hindle being able to meet with Mr Attard between now and then.

[6]        Mr Attard indicated that he would provide Mr Hindle, as an independent solicitor, with the relevant bank statements. That of course in itself would not be sufficient for Mr Attard to comply with the orders made by Toogood J.

[20]              It was only after Mr Black, who ultimately accepted instruction as the amicus rather than Mr Hindle, spoke to Mr Attard that agreement was reached for the provision of the bank statements and credit card statements as detailed in the 2 October 2017 ancillary orders. Mr Attard was bailed to his home address and the matter was adjourned, ultimately until 8 December 2017, when it was confirmed that the plaintiff

sought no further information with regard to compliance with the 2 October 2017 orders.

Legal Principles – Penalties for Contempt

[21]              The authorities are clear that disobedience of a court order or undertaking by a party to litigation constitutes a civil contempt.3

[22]              As the Supreme Court has noted, the purpose of the summary contempt of court process is:4

… to protect the ability of the courts to exercise their constitutional role of upholding the rule of law. Effective administration of justice under our constitution requires that the orders of the courts are obeyed unless properly challenged or set aside. Public confidence in the administration of the law, also necessary for its effective administration, requires that there is a strong expectation that those who ignore court orders are quickly brought to account. Achieving these aims is part of the objective of the law of contempt. The purpose of the summary process, whereby that law is administered by the judges without the assistance of juries, is to put the administration of the contempt law in their hands.

[23]              The jurisdiction to punish for contempt follows from these principles. Its purpose is twofold; to coerce compliance with Court orders for the benefit of a private party, and to serve the public interest in ensuring the administration of justice is maintained and rule of law is upheld.5

[24]              At common law the penalty available to the courts to impose on those found guilty of contempt was not limited, whether by way of fine or imprisonment.6 The Supreme Court has now determined the maximum penalty for contempt is a term of imprisonment for no more than three months and/or a fine.7

3      Young v Zhang [2017] NZCA 622 at [41], citing Siemer v Solicitor-General [2009] NZCA 62, [2009] 2 NZLR 556 and Jennison v Baker [1972] 1 QB 52 (CA).

4      Siemer v Solicitor-General [2010] NZSC 54, [2010] 3 NZLR 767 at [26].

5      Grant v Bhana, above n 1, at [3], citing Attorney-General v Times News Papers Ltd [1974] AC 273 (HL) at 308 per Lord Diplock. See also Solicitor-General v Krieger, above n 1, at [59].

6      Siemer v Solicitor-General, above n 4, at [17].

7      At [67], noting that if the contemnor remains in contempt following that period, they may be resentenced to a further period of imprisonment, again not exceeding three months. Section 24(e) of the New Zealand Bill of Rights Act 1990 has subsequently been amended, such that the maximum period of imprisonment for contempt of common law is not two years.

[25]              Penalties for failure to comply with court orders are assessed through application of a methodology similar to sentencing a criminal offender.8 Because of the need to uphold the rule of law, in fixing a penalty deterrence is an important consideration, as is the objective seriousness of the conduct, the personal culpability of the defendant, his or her means, and any personal or mitigating aggravating factors.9

[26]              Over the last decade fines imposed for contempt have generally ranged between $5,000 and $25,000.10 Fines in the higher range, above $10,000, have tended to be reserved for cases involving serious and sustained breaches of injunction.

[27]              Two recent cases in particular involve somewhat similar considerations to the present one, namely compliance with orders requiring information to be provided to liquidators solving the winding up of a company. In Grant v Bhana, Mr Bhana was fined $8,000 and Ms Bhana $5,000. The sums were to be paid to the Registry, with half distributed to the liquidators (the applicants) and half to the Crown. Brewer J was of the view the behaviour was not the sort of blatant defiance of Court orders which has resulted in a sentence of imprisonment, finding they had “obfuscated and delayed rather than blatantly defied”.11 He also accepted illness and the death of the defendant’s mother were mitigating factors, as was distraction in another related proceeding.12 Brewer J did not however give credit for ignorance or their status as lay litigants, as on more than one occasion in their appearances before him Brewer J stated he had been deliberately blunt in his explanations of their obligations and the likely consequences of failing to meet them.13 Mr Bhana faced a larger fine as he was seen as the “driving force” behind the contempt.

[28]In Grant v Grewal, Heath J ordered the defendants to pay fines of $10,000 and

$5,000 respectively. The $10,000 fine was in respect of conduct Heath J described as “the most serious of the breaches of the orders” before him, describing the fine as an appropriate figure “to denounce the conduct, to hold Mr Grewal accountable for bringing the administration of justice into disrepute, and to deter others from acting in

8      Solicitor General v Miss Alice [2007] 2 NZLR 783 (HC) at [88].

9      Solicitor-General v Krieger, above n 1, at [59].

10     Young v Zhang, above n 3, at [59].

11     Grant v Bhana, above n 1, at [21].

12     At [22]-[23].

13 At [24].

[that] way. It also [took] account of the nature of the orders in issue (failing to provide all relevant documents for examination by the liquidators) and the need for the Courts to support liquidators in their endeavours to obtain information about a company’s affairs”.14

Discussion and Analysis

[29]              Applying the principles set out above to the facts in this case, it can be seen that Mr Attard’s contempt of Court was serious and prolonged and specifically not limited to the conduct that led to his committal by Hinton J on 15 November 2017 – his direct refusal to make the bank information available. On the contrary, it is clear that Mr Attard had in fact made no attempt to comply with the 2 October 2017 ancillary orders over a six week period despite having been given every opportunity to comply with those orders by a succession of judicial officers, who not only provided Mr Attard with further time to enable him to purge what was an ongoing contempt, but also gave him every opportunity to seek legal advice with regard to his compliance with the 2 October 2017 orders.

[30]              It follows that while the committal ordered by Hinton J on 15 November 2017 and again on 16 November 2017 was necessary to coerce compliance with the 2 October 2017 order, the brief period of incarceration which resulted does not address the non-compliance with the 2 October 2017 ancillary orders prior to that date notwithstanding the clear directions to Mr Attard from Toogood J, Gordon J and Van Bohemen J outlined above.

[31]              Although the period in breach of the orders is not as substantial as that detailed in the cases involving liquidators attempting to ascertain information about the company in liquidation,15 I consider that the conduct was at least as serious, given the purpose of the 2 October 2017 ancillary orders to prevent the dissipation of assets owned by Lightning. It was also compounded by Mr Attard’s blatant refusal to comply with those orders on two occasions, when given the opportunity to do so by Hinton J.

14     Grant v Grewal, above n 1, at [36].

15     Grant v Bhana, above n 1, and Grant v Grewal, above n 1.

To adapt Brewer J’s phrase in Grant v Bhana, in this case Mr Attard not only “obfuscated and delayed”, but also blatantly defied the Court’s orders.16

[32]              It is also relevant that Mr Attard’s contempt occurred in a context where there had been ongoing attempts to ensure he complied with the original 25 August 2017 orders made by Toogood J, which as early as 4 September 2017 had led to Muir J making it clear that if he did not comply he would be held in contempt. Muir J noted even then the nature of Mr Attard’s objections to the 25 August 2017 orders were without merit.

[33]              It should also be noted that Mr Attard did not in fact ever fully comply with the 2 October 2017 ancillary orders, but rather benefitted from the fact that the plaintiff was prepared to accept the receipt of the bank statements tendered on 16 November 2017 as being sufficient compliance, rather than requiring Mr Attard to file the affidavit as provided for in the orders.

[34]              Against these considerations, nothing raised by either Mr Attard or Mr Black in any way excuse Mr Attard’s conduct. As Mr Attard appeared to accept, at least in principle, he is not entitled to challenge the orders themselves at the penalty hearing. Instead, once the 2 October 2017 ancillary orders had been made and remained in force he was required to comply with them. Likewise there is no basis, objective or subjective, for Mr Attard to believe that he complied with the 2 October 2017 orders. Indeed, there was no suggestion by Mr Attard in any of his memoranda that he had ever provided the relevant bank information from the LWLC Plus Trust, Rapid Group or himself personally with regard to the relevant period. Instead, throughout it is clear that Mr Attard’s focus was on the 25 August 2017 rather than the 2 October 2017 ancillary orders. This lack of correct focus was no doubt, as Mr Black submitted, due at least in part to the fact that Mr Attard was not represented by counsel throughout the relevant period, and did not attend all of the hearings. Neither of these matters, however, gives rise to any excuse for Mr Attard’s conduct, nor could it possibly provide any basis for a belief that he did not have to comply with the orders that had been issued. There is likewise no evidence before me that Mr Attard’s non-compliance

16 At [21].

was in any way caused by any health issue. In this regard, I note in particular the detailed, if misguided, memoranda provided by Mr Attard throughout the process.

[35]              Taking these various matters together, and having regard to the authorities noted above I am satisfied that the fine of $10,000 sought by the plaintiff is an appropriate penalty in the circumstances of Mr Attard’s contempt, in addition to the short period Mr Attard spent in custody. Specifically I conclude that this sum is appropriate:

(a)to denounce Mr Attard’s conduct;

(b)to hold him accountable for bringing the administration of justice into disrepute;

(c)to deter others from acting the same way; and

(d)having regard to the seriousness of the matters at issue and, in particular, ensuring that the newly appointed liquidators had information with regard to the disposition of the proceeds of sale of Lightning.17

[36]              I likewise conclude that the amount sought by way of costs on behalf of Mr Stuart is appropriate. In particular, given the nature of the 2 October 2017 ancillary orders made by Toogood J and the apparent urgency of the situation, it was entirely appropriate that the plaintiff maintained pressure for the orders to be complied with. The way in which Mr Attard responded as detailed in this judgment directly resulted in the plaintiff incurring the cost of numerous appearances within a short period of time, which as a party they were required to attend. As Mr Chisholm submitted, in situations like the present the Courts have consistently allowed for indemnity (or party and party costs), with Brewer J in Grant v Bhana noting that such costs would approximately equate to the equivalent of 2B scale costs plus 50 per cent.18 In this case the global amount sought on behalf of Mr Stuart, of 2B costs and disbursements

17     As Heath J observed in Grant v Grewal, above n 1, at [36], this is related to the need for the Courts to support liquidators in their endeavours to obtain information about a company’s affairs.

18     Grant v Bhana, above n 1, at [31].

rounded up to $20,000, comes well within the figure identified as being reasonable by Brewer J. In addition, having reviewed Mr Chisholm’s calculations, I am satisfied that there is no overlap between the costs sought in relation to Mr Attard’s contempt of the 2 October 2017 ancillary orders and the costs previously awarded to Mr Stuart in relation to other aspects of this proceeding.

[37]              I am also satisfied in the circumstances of this case that it is appropriate for the fine to be split equally between the Crown and Mr Stuart.

Decision

[38]I therefore make the following orders:

(a)Mr Attard is to pay a fine to the Auckland High Court Registry of

$10,000, of which $5,000 is to be paid to the plaintiff Gordon James Stuart, and $5,000 to the Crown;

(b)Mr Attard is to pay costs and disbursements in the sum of $20,000 to the plaintiff, Mr Stuart;

(c)if the fine and costs set out in (a) and (b) above are not paid within 30 working days of this judgment, Mr Attard is to be imprisoned for 20 days or until the payment is made, whichever is the earlier; and

(d)if the fine and the costs set at in (a) and (b) remain outstanding after any further period of imprisonment set out in (c) the Court file is to be returned back to me for further directions.

[39]              As indicated at the hearing, Mr Black is formally released from the role of amicus and the Court thanks him for his assistance.

Powell J