Tira v McLay

[2021] NZHC 1983

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2020-404-000839

[2021] NZHC 1983

UNDER

Companies Act 1993

IN THE MATTER OF

an application for Orders under s 174 of the Companies Act 1993 and Parts 32 and 33 of the High Court Rules

BETWEEN

GLENN NORMAN TIRA

Plaintiff

AND

DUNCAN BRUCE MCLAY

First Defendant

AND

DUNCAN BRUCE MCLAY, LYNN MCLAY and HARTS GAULD TRUSTEES LIMITED

Second Defendant

AND

SHOTCRETE AUCKLAND LIMITED (in liquidation) Third Defendant

AND

WATERTITE SHOTCRETE LIMITED (in liquidation) Fourth Defendant

Hearing:

On the papers

Appearances:

C T Patterson for the Plaintiff

R G Ewen for the First and Second Defendants
B Pamatatau for the Third and Fourth Defendants

Judgment:

3 August 2021

Reissued:

22 September 2021

JUDGMENT OF VAN BOHEMEN J

[as to costs]

This judgment was delivered by me on 3 August 2021 at 1.00pm

and re-delivered by me on 22 September 2021 in accordance with High Court Rules 2016, r 11.10

…………………………

Registrar/Deputy Registrar

TIRA v MCLAY [as to costs] [2021] NZHC 1983 [3 August 2021]

Introduction

[1]                In my judgment dated 12 November 2020,1 I gave reasons for the decision I delivered orally at the conclusion of the hearing on 21 July 2020 that I would not renew freezing orders made by Moore J on 11 June 2020 over the assets of the first and second defendants. I held that the defendants were entitled to costs on a 2B basis and invited counsel to submit memoranda if they could not agree costs.

[2]                By memorandum dated 25 November 2020, counsel for the first and second defendants raised questions about the substantive proceeding and the plaintiff’s financial position. Those matters were later pursued in the application for security for costs decided by Woolford J on 22 June 2021.2 The memorandum also sought costs of $9,619.75 plus disbursements of $500.00. The costs claimed included costs for a hearing of three-quarters of a day.

[3]                Counsel for the  third  and  fourth  defendants  filed  a  memorandum  dated  3 December 2020 seeking costs of $4,899.50 plus disbursements of $43.48. That application also included costs for a hearing of three-quarters of a day.

[4]                Counsel for the first and second defendants filed an updating memorandum dated 4 December 2020 seeking costs of $12,248.75 plus disbursements of $543.38.

[5]                By memorandum dated 11 March 2021, counsel for the plaintiff took issue with questions raised by counsel for the first and second defendants in their memorandum of 25 November 2020. However, counsel acknowledged that the steps that formed the basis of the costs claimed in that memorandum were appropriate. However, counsel for the plaintiff questioned whether the hearing went longer than half a day. Counsel also challenged the claim for second and subsequent counsel on the basis that the matter did not require second counsel who took no active involvement in the proceeding.

1      Tira v McLay [2020] NZHC 2991.

2      Tira v McLay [2021] NZHC 1496.

[6]                The memorandum of counsel for the plaintiff did not address the costs claimed in the updating memorandum of counsel for the first and second defendants or those claimed in the memorandum of counsel for the third and fourth defendants.

Discussion

[7]                   I am satisfied that the costs and disbursements sought by the first and second defendants in their counsel’s updating memorandum dated 4 December 2020 and by the third and fourth defendants in their counsel’s memorandum dated 3 December 2020 are appropriate.

[8]                The Court records confirm the hearing on 21 July 2020 lasted three hours and 20 minutes. It follows that the hearing must have extended into the afternoon session. Accordingly, I accept the defendants’ claims for a hearing of three-quarters of a day.

[9]                Given the breadth of the orders the plaintiff had obtained and sought to maintain, and the consequences of those orders for the defendants, as well as the various evidential matters raised by the plaintiff, I am also satisfied that the claim for second and subsequent counsel were appropriate.

[10]Accordingly, I order the plaintiff to pay:

(a)To the first and second defendants: costs of $12,248.75 plus disbursements of $543.38; and

(b)To the third and fourth defendants: costs of $4,899.50 plus disbursements of $43.48.

[11]            I apologise to counsel and to the parties for the delay in issuing this decision. It resulted from a misunderstanding on my part following the filing of the application,

since decided by Woolford J, for security for costs by the first and second defendants.

G J van Bohemen J

Solicitors/Counsel: Glaister Ennor, Auckland Wynyard Wood, Auckland

Malcolm Whitlock, Auckland C T Patterson, Auckland

B Pamatatau, Auckland