Whitestone Post Limited v C D Limited
[2017] NZHC 2205
•12 September 2017
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
CIV-2017-412-000085 [2017] NZHC 2205
UNDER Section 290 of the Companies Act 1993 BETWEEN
WHITESTONE POST LIMITED Applicant
AND
C D LIMITED Respondent
Hearing: 12 September 2017 (Determined on the papers) Counsel:
W G Todd for Applicant
S R Wells for RespondentJudgment:
12 September 2017
COSTS JUDGMENT OF ASSOCIATE JUDGE MATTHEWS
[1] Whitestone Post Limited (Whitestone) applied to set aside a demand against it by C D Limited under s 289 of the Companies Act 1993.
[2] The application was not filed and served within the statutory time limit. Correctly, Whitestone then filed a notice of discontinuance.
[3] C D Limited applies for costs on the basis that once Whitestone had failed to serve its application in time, the procedure was a nullity, and in accordance with the general rule that a party which discontinues a proceeding will pay costs.
[4] Whitestone opposes costs being ordered on the basis that the application was soundly based, there being a genuine dispute in relation to whether or not the debt which was the subject of the notice was due and owing. On this basis it says its action in filing the proceeding was reasonable, as was its response to late service by
filing a notice of discontinuance.
WHITESTONE POST LIMITED v C D LIMITED [2017] NZHC 2205 [12 September 2017]
[5] The Court cannot rule on whether the notice should have been issued in the first place, or whether the application to set it aside might have succeeded, on this application. The position is that the application was not served within time and was withdrawn. In that circumstance the applicant must pay costs to the respondent.
[6] A schedule of costs is attached to the respondent’s memorandum. I have
reviewed it, and award costs and disbursements to the respondent against the applicant in the sum of $5,110.50.
J G Matthews
Associate Judge
Solicitors:
Dean & Associates, Oamaru
Gallaway Cook Allan, Dunedin
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