RE FISK AND MCMILLAN [2018] NZHC 2570

RE FISK AND MCMILLAN [2018] NZHC 2570

Costs were refused because Fehsenfeld primarily supported an argument already advanced by the liquidators, offered no independent evidence or materially different submissions, sought joinder largely to preserve appeal rights, and awarding costs would unfairly diminish the distribution pool for other investors.

Source-derived case information.

Citation
[2018] NZHC 2570
Parties
Liquidator (applicant): John Howard Ross Fisk; Liquidator (applicant): Marcus James McMillan; Joined Party (interested Investor): Dr E D Fehsenfeld
Court
High Court
Jurisdiction
New Zealand
Judgment Date
1 October 2018
Procedural Posture
Companies Act Application (ss 271 and 284) / Costs Application on the Papers After Substantive Judgment
Outcome
Application for costs by Dr E D Fehsenfeld declined.
Legal Topics
Liquidation, Distribution of Assets, Costs Order, Joinder, Net Contribution Model, Pari Passu Distribution, Amicus Curiae
Company Law Insolvency Civil Procedure Costs Liquidation Distribution of Assets Costs Order Joinder +3 more

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Parties

John Howard Ross Fisk

Liquidator (applicant)

Marcus James McMillan

Liquidator (applicant)

Dr E D Fehsenfeld

Joined Party (interested Investor)

Procedural Posture

Companies Act Application (ss 271 and 284) / Costs Application on the Papers After Substantive Judgment

Legal Issues

  1. 1 Whether Dr Fehsenfeld was entitled to an award of costs following the directions hearing
  2. 2 Whether solicitor-and-client costs or scale/party-and-party costs should be awarded
  3. 3 Whether joinder to preserve appeal rights and lack of independent evidence/argument disentitled the joined party to costs

Ratio Decidendi

Costs were refused because Fehsenfeld primarily supported an argument already advanced by the liquidators, offered no independent evidence or materially different submissions, sought joinder largely to preserve appeal rights, and awarding costs would unfairly diminish the distribution pool for other investors.

Court Disposition

Application for costs by Dr E D Fehsenfeld declined.

Orders

  • Application for costs is declined.