BPE Trustees (no.1) Limited v Bassett-Burr

[2021] NZHC 1533

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2019-485-531

[2021] NZHC 1533

BETWEEN

BPE TRUSTEES (NO. 1) LIMITED

First Judgment Creditor

QUENTIN HAINES PROPERTIES LIMITED
Second Judgment Creditor

AND

ROY WILLIAM BASSETT-BURR

Judgment Debtor

Hearing:	On the papers
Appearances:	J D Dallas for judgment creditors D Livingston for judgment debtor
Judgment:	25 June 2021

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

[1]This is a costs application. It arises in unusual circumstances.

[2]        To cut a long story short, in the context of other proceedings, on 30 August 2019 Churchman J made a costs award in favour of the judgment creditors against the judgment debtor, who was not himself a party in that proceeding but rather the director of a company which was a trustee of a trust, the trustees of which were involved.1

[3]The judgment creditors served a bankruptcy notice on Mr Bassett-Burr.

1      Haines v Memelink [2019] NZHC 2169.

BPE TRUSTEES (NO. 1) LIMITED v BASSETT-BURR [2021] NZHC 1533 [25 June 2021]

[4]        Mr Bassett-Burr applied to set the bankruptcy notice aside and in a judgment dated 6 November 2019 I refused that application.2 The judgment creditors then issued this proceeding.

[5]        In the meantime, Mr Bassett-Burr had appealed to the Court of Appeal against Churchman J’s original judgment and in a judgment dated 29 September 2020 the Court of Appeal allowed the appeal with the result that the judgment creditors no longer held a judgment against Mr Bassett-Burr to support their bankruptcy notice or this proceeding.3

[6]        Accordingly, on 9 March 2021, the judgment creditors discontinued their proceeding.

[7]Mr Bassett-Burr now applies for costs on the discontinuance.

[8]        As Mr Livingston rightly says r 15.3 provides that in the absence of agreement between the parties or a court order to the contrary, on the discontinuance of a proceeding, the discontinuing party is liable for costs up to the point of discontinuance.

[9]        However, as Mr Dallas submits, this is a situation in which the judgment creditors were, at the time they served the statutory demand and at the time that they commenced the proceeding right up until the date on which the Court of Appeal’s judgment was handed down, entitled to proceed as they did.

[10]      The curious position is that both parties might be said to have acted within their rights and with justification in dealing with this matter.

[11]      In those circumstances, the view I take is that the fairest way of dealing with matters is to allow the costs of this proceeding to lie where they have fallen.

2      BPE Trustees (No. 1) Ltd v Bassett-Burr [2019] NZHC 2880.

3      Bassett-Burr v BPE Trustees (No. 1) Ltd [2020] NZCA 457.

Accordingly, I dismiss Mr Bassett-Burr’s application for costs.

Associate Judge Johnston

Solicitors:

J D Dallas, Wellington for judgment creditors

Livingston & Livingston, Wellington for judgment debtor