TGR Helicorp Limited (in receivership) v Rogers

[2012] NZHC 1696

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2008-404-4109 [2012] NZHC 1696

BETWEEN  TGR HELICORP LIMITED (IN RECEIVERSHIP)

First Plaintiff

ANDBASTIA INVESTMENTS LIMITED, GEORGE PETER GLAISTER & SONIA LEE GLAISTER AND PETER MARSDEN BARRY, ANDREA CAROL BARRY & DAVID MARSDEN BARRY Second Plaintiffs

ANDGLENDA FRANCES ROGERS AND TRAVOR VICEMAR ROGERS Defendants

Hearing:         (on the papers)

Appearances: D Salmon and M Heard for the Plaintiffs

Defendants on their own behalf

Judgment:      13 July 2012

JUDGMENT OF WOODHOUSE J (Costs)

This judgment was delivered by me on 13 July 2012 at 4:00 p.m. pursuant to r 11.5 of the High Court Rules 1985.

Registrar/Deputy Registrar

……………………………………

Solicitors:

Mr D Salmon / Mr M Heard, LeeSalmonLong, Solicitors, Auckland

Mrs G F Rogers and Mr T V Rogers, Auckland

TGR HELICORP LIMITED (IN RECEIVERSHIP) V ROGERS HC AK CIV-2008-404-4109 [13 July 2012]

[1]      The plaintiffs seek indemnity costs.

[2]      There is a preliminary question whether the defendants are entitled to be heard on this application, or on any other matter in the proceeding.  For this reason a summary of the procedural history is necessary.

[3]      By judgment dated 15 December 2010 I held that the defendants were in contempt of Court.  The reasons are fully set out in that judgment.  Having held the defendants to be in contempt, an order was made that “both defendants are debarred from defending the substantive claims of the plaintiffs”.  The order was expressed in those terms to make clear that the defendants were not debarred from defending themselves in respect of on-going issues relating to the contempt part of the proceeding.  In particular, there was a further order by the judgment of 15 December

2010 that a writ of arrest issue to bring Mr Rogers before the High Court in February

2011 for consideration as to whether there had been compliance with other orders in the December judgment and, if not, to commit Mr Rogers to prison for one month as a further penalty for the contempt of Court.

[4]      The  effect  of  the  order  debarring  the  defendants  from  defending  “the substantive claims” is that they were not and are not entitled to take any steps in respect of the substantive proceeding of the plaintiffs.

[5]      On  10  October  2011  certain  orders  were  made.     Following  this,  by memorandum dated 18 October 2011, the plaintiffs sought further orders and costs. By memorandum dated 19 October 2011 counsel for the defendants stated that, although the defendants had been debarred, “they remained parties and as such have a right to be heard”.   In  reliance on that submission counsel recorded that the defendants  wished  to  be  heard  on  the  question  of  costs  and  as  to  whether  the receivers of the first plaintiff should be released from an undertaking as to damages.

[6]      By minute dated 25 October 2011 I made the following directions:

[2]      The plaintiffs are to file and serve a memorandum recording:

a)        The grounds for the costs application in 3(c).

b)       The amount sought with the usual particulars. This should be filed and served within 10 days.

[3]       The defendants are to file and serve a memorandum recording the basis upon which it is contended that the defendants are entitled to be heard notwithstanding the order debarring them from defending the proceedings. This should be filed and served within 10 days of receipt of the plaintiffs’ memorandum.

[7]      The direction in [2]a) of the minute was directed primarily to the fact that the defendants had been adjudicated bankrupt in January 2009.

[8]     The memorandum on costs was filed on 12 December 2011.   It is a comprehensive memorandum recording the reasons why the plaintiffs submitted they were entitled to costs notwithstanding the bankruptcy, setting out the grounds for indemnity costs, and providing full particulars of the quantum.

[9]      There has been a long delay by the defendants in responding to the minute of

25 October 2011.   A memorandum of counsel for the defendants was filed on or about 9 February 2012 seeking an extension of time.  I will not record the details of what followed.  The essence is that successive applications for an extension of time were granted, with the final extension being granted, in a minute dated 16 April

2012, until 24 April 2012.

[10]     On 24 April 2012 the defendants filed a memorandum on their own behalf. There was a response for the plaintiffs by memorandum dated 25 May 2012.

[11]     The leave granted to the defendants in the minute of 25 October 2011 to file a memorandum,  was  leave solely for the purpose of setting out  reasons  why the defendants were entitled to be heard notwithstanding the order debarring them from defending the proceeding.  The defendants’ memorandum of 24 April 2012 goes well beyond those questions.   I intend to address only the question as to whether the defendants are entitled to be heard on matters relating to the substantive proceeding.

[12]     The essence of the  defendants’ grounds for the submission that they are entitled to be heard, although put in different ways, is that they had no opportunity to be heard on the question as to whether they should be debarred from defending the

substantive proceeding.  There is no substance to that submission whatsoever.  This may be seen from the judgment of 15 December 2010 containing the order debarring the defendants.  The order was made following a full hearing.  At this hearing the defendants were represented by counsel and were themselves in attendance.  They had the opportunity to cross-examine all witnesses for the plaintiffs and did cross- examine all witnesses for the plaintiffs.  The hearing, after three days of evidence, was adjourned for just over seven weeks for submissions to be made.   Written submissions were prepared and filed for the  defendants and their counsel made further  oral  submissions.    The  hearing  of  these  matters  had  been  preceded  by numbers of hearings on  interlocutory applications and conferences at which the defendants either attended in person or were represented.

[13]     The defendants have not advanced any grounds which would entitle them to be heard on the question of costs (or on any other outstanding issues arising out of the proceeding).  I nevertheless record that I am fully satisfied, as I would have to be, that notwithstanding the submissions the  defendants have sought to advance on costs, the plaintiffs are undoubtedly entitled to indemnity costs.  The reasons for this will be abundantly clear from the judgment of 15 December 2010.

[14]     At the conclusion of their memorandum the defendants provided a summary of what they are seeking.   They request a Court order that the plaintiffs, or the receivers of the first plaintiff, return a toolbox and tools of trade and “documents, photos and video discs” taken from the defendants’ home.  I do not intend to make an order to that effect.  I do record, nevertheless, that it is to be expected that any personal possessions of the defendants which would, in the normal course, be expected to be returned to them, will be returned to them unless they come within the terms of any of the Court orders or it is property in respect of which the plaintiffs may have an entitlement as a matter of law for other reasons, including enforcement of a judgment for costs.

The application for costs

[15]     The plaintiffs are entitled to costs against the defendants, notwithstanding the bankruptcy orders.   This is because, at a conference attended by counsel for the

plaintiffs, the defendants, and the Official Assignee in bankruptcy of the defendants, this  Court  granted leave for the proceedings  to  continue  against  the  defendants notwithstanding their bankruptcy.   This leave was in respect of specified matters, including costs.

[16]     As already recorded I am fully satisfied that the plaintiffs are entitled to indemnity costs for the reasons underlying the judgment of 15 December 2010.

[17]   I am further satisfied that the plaintiffs are entitled to the costs and disbursements as set out in, and fully particularised in, their memorandum of 12

December 2011. That is:

(a)       Costs in a sum of $287,042.46.

(b)Disbursements, as set out at paragraph 15(b) of the memorandum, in a total sum of $44,813.50.

[18]     The plaintiffs are further entitled to reasonable costs and any disbursements incurred since the memorandum of 12 December 2011.

Woodhouse J