O'CONNELL V GEMMELL CONTRACTING LIMITED HC CHCH CIV-2010-409-000748

O'CONNELL V GEMMELL CONTRACTING LIMITED HC CHCH CIV-2010-409-000748

Because the creditor's original application included costs, the memorandum seeking costs was filed before the adjudication order was uplifted, and the bankrupt had impliedly consented to costs in the repayment arrangement, the costs application was supplemental to the adjudication and the Court was not functus officio; consequently costs were awarded to the creditor and Laing Contractors Limited on a 2B basis with disbursements.

Citation
openlaw-411bddb0_5147_4923_a43d_5ec040313f12.pdf
Parties
Debtor: Joseph Thomas O'Connell; Creditor: Gemmell Contracting Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
3 November 2010
Procedural Posture
Bankruptcy Adjudication / Costs Application After Bankruptcy Adjudication
Outcome
Costs awarded to the judgment creditor and to Laing Contractors Limited on a 2B basis together with disbursements as set by the Registrar.
Legal Topics
Adjudication, Functus Officio, Supporting Creditor, Costs Assessment
Bankruptcy Civil Procedure Costs Adjudication Functus Officio Supporting Creditor Costs Assessment

Case Brief

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Parties

Joseph Thomas O'Connell

Debtor

Gemmell Contracting Limited

Creditor

Procedural Posture

Bankruptcy Adjudication / Costs Application After Bankruptcy Adjudication

Legal Issues

  1. 1 Whether the Court was functus officio and hence unable to award costs after making the adjudication order
  2. 2 Whether the costs application was supplemental to the original adjudication
  3. 3 Whether the bankrupt had impliedly consented to costs as part of a repayment arrangement

Ratio Decidendi

Because the creditor's original application included costs, the memorandum seeking costs was filed before the adjudication order was uplifted, and the bankrupt had impliedly consented to costs in the repayment arrangement, the costs application was supplemental to the adjudication and the Court was not functus officio; consequently costs were awarded to the creditor and Laing Contractors Limited on a 2B basis with disbursements.

Court Disposition

Costs awarded to the judgment creditor and to Laing Contractors Limited on a 2B basis together with disbursements as set by the Registrar.

Orders

  • Award costs to Gemmell Contracting Limited and Laing Contractors Limited on a 2B basis together with disbursements as set by the Registrar.