Toner v Made in Nippon Limited

[2023] NZHC 116

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2022-485-755

[2023] NZHC 116

BETWEEN

MARIA HELEN LOUISE TONER

First Plaintiff

MAUREEN MARGARET TONER
Second Plaintiff

PATRICIA ANN STACEY
Third Plaintiff

AND

MADE IN NIPPON LIMITED

Defendant

Hearing:

On the papers

Appearances:

D MacKenzie for Plaintiffs

P W Michalik for Carol Toner
B Burke for Victoria Threadwell

Judgment:

7 February 2023

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

[1]    This case arose from a dispute between the plaintiffs, Ms Carol Toner and  Ms Victoria Threadwell, all of whom are shareholders of the defendant, Made in Nippon Ltd. Eventually, the plaintiffs commenced proceedings seeking a winding up order. By that stage, the dispute was less about whether or not the defendant should be wound up and more about who should be appointed as the liquidator. I dealt with that in a judgment dated 15 December 2022. Subsequently, the parties were able to agree on an independent liquidator, as I had ordered, and on 19 December 2022 a consent order was made winding the company up.

TONER v MADE IN NIPPON LIMITED [2023] NZHC 116 [7 February 2023]

[2]    Costs were reserved. In my judgment I recorded that all parties had signalled an intention to seek costs. I went on to say that a respectable argument for costs could be made on each of their behalves, and that my preliminary view was that substantial justice would be done if I declined to make any costs order, leaving all three parties to bear their own costs. I emphasised that that was merely a preliminary view, and if the parties could not agree the Court would deal with costs.

[3]    And so it has transpired. I now have memoranda on behalf of the plaintiffs from Mr MacKenzie, Ms Carol Toner from Mr Michalik and Ms Threadwell from Mr Burke.

[4]    This is one of those situations in which all parties are claiming to have prevailed in the litigation, which is not as unusual as one might expect.

[5]    Mr MacKenzie says in his submission that the plaintiffs won because they applied for an order winding up the company up and “achieved that result”, and he submits that, prima facie, the plaintiffs are therefore entitled to a costs award. Superficially at least, that is a plausible position. He emphasises that when the plaintiffs first proposed that the  company  be  wound  up,  Ms  Carol  Toner  and  Ms Threadwell resisted this. Mr MacKenzie refers me to correspondence in which the merits of a winding up were debated and which bears out his contention.

[6]    However, all of that occurred before the commencement by the plaintiffs of their proceeding on 9 November 2022. From that point, the only real issue separating the parties appears to have been who the liquidator would be. As Mr Michalik and Mr Burke contend, the plaintiffs proposed one liquidator and the Court eventually determined — against the plaintiffs — that that person should not be appointed and that an alternative liquidator who had had no involvement with the plaintiffs or any other party involved should be appointed.

[7]    Standing back from the matter, that description of events suggests that the plaintiffs may have a respectable argument for costs in relation to the need to commence this proceeding in the first place, but that Ms Carol Toner and

Ms Threadwell might have an equally respectable argument for costs in relation to the hearing before me.

[8]    It is as a result of that balance that I made what I thought was a practical suggestion at the conclusion of my judgment that it might be appropriate to leave costs to lie where they had fallen.

[9]    Having now had the benefit of counsel’s submissions in relation to costs, my view remains unchanged.

[10]   In the end, the view I take is that each of the parties has had a measure of success, and that it would constitute an injustice for the Court to make a costs award against any of them in favour of any other. I decline to do so.

Associate Judge Johnston

Solicitors:

Gibson Sheat, Wellington for Plaintiffs

Greig Gallagher & Co, Wellington for Carol Toner Harmans, Christchurch for Victoria Threadwell