Exterior Building Care Goleman Limited v AFO Industrial Limited (in liquidation) (Formerly called Air Fluid Otago Limited)

[2014] NZHC 1129

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2013-409-000046 [2014] NZHC 1129

BETWEEN

EXTERIOR BUILDING CARE

GOLEMAN LIMITED Plaintiff

AND

AFO INDUSTRIAL LIMITED (IN LIQUIDATION) (FORMERLY CALLED AIR FLUID OTAGO LIMITED) Defendant

AND

LIQUIDATOR ONLY Associated Respondent

AND

TREVOR EDWIN LAING Associated Respondent

Hearing:	26 May 2014
Appearances:	D A Webb and R G McCrae for Plaintiff D W Sim for Defendant
Judgment:	26 May 2014

ORAL JUDGMENT OF GENDALL J

[1]      This is a decision with respect to an interlocutory application for a stay of an earlier  judgment  and  adjournment  of  this  fixture  filed  by  the  company  AFO Industrial Limited (In Liquidation) dated 19 May 2014.   That application was supported by an affidavit of Mr Trevor Edwin Laing the liquidator, dated 29 April

2014, and an affidavit of Mr Allan Thomas Andrews dated 16 May 2014.

[2]      The  application  was  opposed  by  the  plaintiff,  Exterior  Building  Care

Goleman Limited.

EXTERIOR BUILDING CARE GOLEMAN LIMITED v AFO INDUSTRIAL LIMITED (IN LIQUIDATION) (FORMERLY CALLED AIR FLUID OTAGO LIMITED) [2014] NZHC 1129 [26 May 2014]

[3]      The application itself is made in reliance on r 12(3) Court of Appeal (Civil) Rules 2005.

[4]      Today I have heard submissions with respect to the application from Mr Sim as counsel for the defendant company AFO Industrial Limited (In Liquidation) and from Mr Webb as counsel for the plaintiff Exterior Building Care Goleman Limited.

[5]      Having heard those submissions, and considered the material which is before the Court with respect to this application, I find that the application fails.   The application for a stay pending appeal is dismissed.   My detailed reasons for this decision will follow:

[6]      Given that decision and in light of the directions that I made in a minute I issued  in  this  proceeding  dated  20  May  2014,  the  substantive  hearing  of  the plaintiff’s claim against the defendant company in liquidation in this proceeding CIV-2013-409-000046 will now proceed.  I am going to take a short adjournment in this matter for five minutes and then we will proceed with the substantive hearing.

Costs

[7]      With respect to the stay application, before me Mr Webb for the plaintiff sought costs in this matter against the liquidator and indeed an award of indemnity costs.

[8]      Costs are reserved however.

[9]      And, given the seriousness of the application for costs which is before me, I

now make the following directions:

(a)      The plaintiff is to file and serve any detailed submissions on the costs question it may wish to make within 10 working days of today.

(b)The defendant and the liquidator Mr Laing are to have the opportunity to file and serve any detailed memoranda on costs in response within a further 10 working days of that date.

(c)      The plaintiff is then to have an opportunity to file and serve any reply memoranda on costs, within a further five working days of that date.

(d)Those memoranda are to be referred to me, and in the absence of any party indicating they wish to be heard on the question of costs, I will decide that question based upon the material then before the Court.

...................................................

Gendall J

Solicitors:

Lane Neave, Christchurch

Rodgers Law, Dunedin

Donnie Stewart, Dunedin