Thompson v Timber Trading Limited HC New Plymouth CIV 2006-443-556

[2007] NZHC 1763

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CIV 2006-443-556

IN THE MATTER OF     The Insolvency Act 1967

BETWEEN  MALCOLM THOMPSON Judgment Debtor

AND  TIMBER TRADING LIMITED Judgment Creditor

Hearing:         28 May 2007

(Heard at Auckland)

Appearances: Mr Thompson in person

Mr Gurnick for Judgment Creditor

Judgment:      28 May 2007

ORAL JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE

Solicitors:

Auld Brewer Mazengarb & McEwen, P O Box 738, New Plymouth

McCaw Lewis Chapman, Hamilton –by email [email protected]

THOMPSON V TIMBER TRADING LTD HC NWP CIV 2006-443-556  28 May 2007

[1]      The  bankruptcy  proceeding  in  this  matter  goes  back  to  the  issue  of  a bankruptcy notice by the judgment creditor in November of last year.   That bankruptcy notice was based upon a judgment for $23,127.04.   Subsequently the judgment  creditor  filed  proceedings  seeking  an  order  adjudicating  the  judgment debtor bankrupt in December of last year.  There was an adjournment until 2 April

2007 when the matter was called on its first calling.  It was subsequently adjourned again on 2 April until today’s date.   In the meantime Mr Thompson had made an offer to settle.   But not only did the solicitors for the judgment creditor wish to recover the $23,127.04 but also scale costs and disbursements.   Mr Thompson declined to pay the scale costs and disbursements.

[2]      Mr Thompson has remained willing to pay the $23,127.04 and today before me Mr Gurnick as agent appearing on instructions from the judgment  creditor’s solicitors has indicated that the main debt, the $23,127.04 has been settled, but the judgment  creditor still seeks costs.   Mr Thompson opposes that  saying  that  the reason why costs were incurred was that the judgment creditor did not act promptly to consider communications from his side offering to settle the matter.

[3]      My judgment is that the judgment creditor should have the costs of starting the proceedings including the disbursements relating to filing the proceedings and serving them.  There is some doubt about the entitlement of the judgment creditor for costs in the subsequent steps in the proceedings and that relates to the appearances

2 April 2007 and today.  I decline to order costs for the last two appearances.  Apart from that the judgment creditor will have costs on a 2B basis plus disbursements to be fixed by the Registrar.  My reason is that the judgment creditor had in the first place to take proceedings to bring Mr Thompson to the point where he would make an offer and I consider it fair and reasonable that they have the costs up to that point

if not thereafter.

J.P. Doogue

Associate Judge