Valmont v Chevin - [2023] NZHC 2292

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-2117

[2023] NZHC 2292

UNDER the Insolvency Act 2006

IN THE MATTER OF

the bankruptcy (or proposal, as the case may be) of PETER LOUIS CHEVIN

BETWEEN

CLARK VINCENT VALMONT

Plaintiff

AND

PETER LOUIS CHEVIN

Defendant

Hearing: 17 August 2023

Appearances:

S M Lowery / J C Suyker for the Plaintiff

R B Hucker / A L McMillan for the Defendant

Judgment:

23 August 2023

COSTS JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR

This judgment was delivered by me on 23 August 2023 at 3:00pm

pursuant to Rule 11.5 of the High Court Rules

…………………………. Registrar/Deputy Registrar

Solicitors:
Greenwood Roche (Steve Woodfield), Auckland, for the Plaintiff
Molloy Hucker Law(Robert B Hucker/Amy L McMillan), Auckland, for the Defendant

Copy for:
Samuel M Lowery, Bankside Chambers, Auckland, for the Plaintiff

VALMONT v CHEVIN [2023] NZHC 2292 [23 August 2023]

Introduction

[1] This matter was called before the court at 10:00 am on 17 August 2023, being an application by Clark Vincent Valmont, the judgment creditor (Mr Valmont) to have the judgment debtor, Peter Louise Chevin (Mr Chevin) adjudicated bankrupt. Just prior to the hearing, Mr Chevin paid the judgment debt and the hearing solely related to the issue of costs. At the hearing, Mr Lowery, counsel for Mr Valmont, handed up a submission on costs dated 17 August 2023. Counsel for Mr Chevin, Mr Hucker, made submissions at the hearing as to costs.

[2] At the hearing, the application for adjudication by Mr Valmont was dismissed and the matter of costs was reserved.

Submissions

[3] Mr Lowery submitted that Mr Valmont should be awarded a mixture of indemnity and scale costs pursuant to r 14.6(4)(a) of the High Court Rules 2016 and is seeking a total award of $9,698.95.

[4] Mr Lowery submits that r 14.6(4)(a) provides the Court may award indemnity costs if:

… The party has acted vexatiously, frivolously, improperly, or unnecessarily in commencing, continuing, or defending the proceeding or a step in the proceeding.

Mr Lowery submits that Mr Chevin paid the judgment debt shortly before the hearing, and his submissions disclose there was never a proper basis for him to oppose the adjudication.

[5]Mr Lowery made the following submissions in support of the costs sought:

(a)Mr Chevin had had a year to pay the most recent judgment, and two years to pay the oldest judgment sum and in that time had made no

effort to pay, or negotiate a payment plan with Mr Valmont. Instead, Mr Chevin employed the tactic of putting Mr Valmont to the cost of adjudication proceedings and waiting to the last moment to pay in the hope that Mr Valmont may give up or run out of funds or offer a deal to avoid legal fees;

(b)Mr Chevin is a serial bankrupt and has a history of ignoring Court orders, leaving debts unpaid, breaching management banning orders under s 382(1) of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Valmont v Chevin

Details

AGLC: Valmont v Chevin [2023] NZHC 2292
Case: [2023] NZHC 2292
Decision Date: 23 August 2023

CaseChat Overview and Summary

The case of Valmont v Chevin was heard in the High Court of New Zealand, Auckland Registry. Clark Vincent Valmont, the plaintiff, sought to have Peter Louise Chevin, the defendant, adjudicated bankrupt. The case was heard on 17 August 2023, and the only issue remaining was that of costs after the defendant had paid the judgment debt prior to the hearing. The court was required to determine whether it had the jurisdiction to award costs to the plaintiff and, if so, what form those costs should take.

The court first considered the authority of Re Peacock, which suggested that a creditor who accepts payment of a debt prior to a hearing could not subsequently seek costs. However, the court followed the reasoning in Smith and Partners (a firm) v Laurenson, which held that a creditor is not bound by any imputed intention not to pursue costs if they accept payment of a debt. The court found that it had the jurisdiction to award costs, despite the payment of the judgment debt.

The court also considered whether the defendant's conduct outside of the proceedings could be taken into account when assessing costs. The court followed the authority in Paper Reclaim Ltd v Aotearoa International Ltd and held that such conduct should not be considered. The court found that the defendant had not behaved "either badly or very unreasonably" to the degree that would justify indemnity costs. Accordingly, the court decided that costs should be assessed on a 2B basis.

In conclusion, the court ordered that the defendant pay the plaintiff costs calculated on a 2B basis, together with disbursements, totalling $5,730.75. The court did not award indemnity costs, as the defendant's conduct outside of the proceedings was not considered, and the defendant had not behaved "either badly or very unreasonably" to the degree that would justify such costs.

Orders