CALYPSO NO.11 LIMITED v IAN GEORGE FISTONICH [2023] NZHC 1335

CALYPSO NO.11 LIMITED v IAN GEORGE FISTONICH [2023] NZHC 1335

Costs awarded: (1) Costs relating to the Proposal are awarded to Mr Fistonich against Premier LP and Foy & Halse on a 2B basis but reduced by 15 per cent because the opposition produced a successful condition to the Proposal; (2) Costs of the bankruptcy adjudication are awarded to Calypso & Praxis on a 2B basis (not indemnity/solicitor-client) because contractual indemnity rights were treated as merged into the judgment and the trustees were enforcing the District Court judgment; (3) timing: Calypso & Praxis may elect within 10 working days to either add the costs award to their claim under the approved Proposal or to have the costs payable only on completion of the Proposal; if they...

Citation
[2023] NZHC 1335
Parties
Judgment Creditor: Calypso No.11 Limited; Judgment Creditor: Praxis Limited; Judgment Debtor: Ian George Fistonich; Supporting Creditor: Premier Legal Finance Limited Partnership; Supporting Creditor: Foy & Halse
Court
High Court
Jurisdiction
New Zealand
Judgment Date
6 June 2023
Procedural Posture
Bankruptcy Application and Proposal Approval Under the Insolvency Act 2006 / Costs Determination Following Judgment Approving Proposal and Adjudication Proceedings
Outcome
Costs awarded partly to the judgment debtor in respect of the Proposal and partly to the judgment creditors in respect of the bankruptcy proceedings; timing of payment of the bankruptcy costs deferred to creditor election.
Legal Topics
Proposal Approval Under Part 5 Subpart 2, Costs Orders and Timing, Appeal Under Insolvency Regulations Reg 32, Doctrine of Merger of Contractual Costs
Insolvency Bankruptcy Civil Procedure Costs Proposal Approval Under Part 5 Subpart 2 Costs Orders and Timing Appeal Under Insolvency Regulations Reg 32 Doctrine of Merger of Contractual Costs

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Parties

Calypso No.11 Limited

Judgment Creditor

Praxis Limited

Judgment Creditor

Ian George Fistonich

Judgment Debtor

Premier Legal Finance Limited Partnership

Supporting Creditor

Foy & Halse

Supporting Creditor

Procedural Posture

Bankruptcy Application and Proposal Approval Under the Insolvency Act 2006 / Costs Determination Following Judgment Approving Proposal and Adjudication Proceedings

Legal Issues

  1. 1 Whether opposing creditors who unsuccessfully challenged approval of a Proposal should pay costs and on what basis
  2. 2 Whether costs of the bankruptcy adjudication proceedings should be awarded and on what scale
  3. 3 Whether contractual entitlement to solicitor-client (indemnity) costs survived merger into judgment and thus justified indemnity costs

Ratio Decidendi

Costs awarded: (1) Costs relating to the Proposal are awarded to Mr Fistonich against Premier LP and Foy & Halse on a 2B basis but reduced by 15 per cent because the opposition produced a successful condition to the Proposal; (2) Costs of the bankruptcy adjudication are awarded to Calypso & Praxis on a 2B basis (not indemnity/solicitor-client) because contractual indemnity rights were treated as merged into the judgment and the trustees were enforcing the District Court judgment; (3) timing: Calypso & Praxis may elect within 10 working days to either add the costs award to their claim under the approved Proposal or to have the costs payable only on completion of the Proposal; if they...

Court Disposition

Costs awarded partly to the judgment debtor in respect of the Proposal and partly to the judgment creditors in respect of the bankruptcy proceedings; timing of payment of the bankruptcy costs deferred to creditor election.

Orders

  • Costs and disbursements of $10,004.35 are awarded to Mr Fistonich in respect of the Proposal, payable jointly and severally by Premier Legal Finance Limited Partnership and Foy & Halse and payable immediately.
  • Costs and disbursements of $11,624.45 are awarded to Calypso & Praxis in respect of the bankruptcy proceedings, payable by Ian George Fistonich. Calypso & Praxis must notify the parties and the Court within 10 working days whether the costs are to be added to Calypso & Praxis' claim with the trustees under the...