O'Callaghan v Kaikorai Valley Properties Limited

[2020] NZHC 132

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2018-412-99

[2020] NZHC 132

BETWEEN

EARL DAVY O’CALLAGHAN AND CAROL CATHERINE O’CALLAGHAN
Plaintiffs

AND

KAIKORAI VALLEY PROPERTIES LIMITED

Defendant

Hearing:	On the papers
Counsel:	B J Burt and A Rana for Plaintiffs Self-represented Defendant
Judgment:	11 February 2020

JUDGMENT OF ASSOCIATE JUDGE LESTER

[1]    On 7 February 2019, Associate Judge Bell made an order placing the defendant company into liquidation. The plaintiffs had sought costs relying on the learned Judge’s judgment in Fankhauser & Ors v Strongline Buildings Ltd, where his Honour noted the statutory entitlement, under cl 1(1)(c) of the Seventh Schedule to the Companies Act 1993, for a plaintiff in liquidation proceedings to be paid his or her actual and reasonable legal costs.1

[2]    Associate Judge Bell made an order that the plaintiffs’ actual and reasonable costs of the application were to be paid out of the assets of the company, but the Judge directed the plaintiffs to file an affidavit as to those costs and in respect of GST issues.

1      Fankhauser & Ors v Strongline Buildings Ltd [2014] NZHC 2629 at [4].

O’CALLAGHAN v KAIKORAI VALLEY PROPERTIES LIMITED [2020] NZHC 132 [11 February 2020]

[3]    The plaintiffs have, after some time, sought to have costs quantified and they have produced to the Court the invoices they seek to have covered by the costs award.

[4]    The  statutory  demand   relied   on   in   this   proceeding   was   served   on  5 September 2018. The earliest invoice the plaintiffs seek to be included within the costs award is dated 31 May 2018.

[5]    I am not prepared to allow the May 2018 invoice to be included in the costs relating to the liquidation. While the narration shows that part of the invoice relates to the amount that was claimed in the statutory demand, in my view that invoice was preparatory to the issue of the statutory demand.

[6]The invoice dated 30 September 2018 relates to the statutory demand.

[7]    The remaining invoices relate directly to the liquidation including counsel’s fees and agents’ fees.

[8]    Accordingly, save for the May 2018 invoice totalling $2,085, the plaintiffs’ application for costs is approved.

[9]There is a costs award in the sum of $15,126.50 and disbursements of

$1,485.53 against the defendant.

[10]   As to GST, the plaintiffs have confirmed that they are not registered for GST and thus will not receive a refund of the GST content of the costs they have paid. Accordingly, GST is a true cost to the plaintiffs and the above amounts are GST inclusive.

Associate Judge Lester

Solicitors:

Ellis Gould Lawyers, Auckland

Copy to counsel:
B J Burt, Barrister, Auckland

Copy to the Defendant: Kaikorai Valley Properties Limited