SUSAN SPENCER V MYLES JOHN PRESTIDGE AND ANOR HC AK CIV 2007-404-187

SUSAN SPENCER V MYLES JOHN PRESTIDGE AND ANOR HC AK CIV 2007-404-187

Because the insolvent's settlement was only communicated on the hearing date after substantial preparation by the official assignee and because the official assignee had reasonable grounds (deficiencies in the proposal and evidence of undisclosed companies/trust and a significant asset sale) to seek a priority fixture, the court awarded the official assignee costs on a 2B basis including full-day preparation costs and costs for the priority fixture, plus disbursements as fixed by the registrar.

Citation
openlaw-78d6e217_9285_493d_b95f_5c1cb804ab46.pdf
Parties
Plaintiff (insolvent; Proposer): Susan Spencer; Respondent (adjudication Applicant): Myles John Prestidge; Objector (official Assignee): Official Assignee in Bankruptcy of the property of Kim Hilton Spencer
Court
High Court
Jurisdiction
New Zealand
Judgment Date
13 August 2008
Procedural Posture
Application for Approval of a Proposal Under Part XV of the Insolvency Act 1967 and Related Adjudication Proceedings / Hearing Fixed 25 February 2008; Proposal Withdrawn and Adjudication Application Withdrawn; Post Withdrawal Application for Costs Determined
Outcome
Official Assignee awarded costs against the insolvent; costs assessed on a 2B basis including full-day preparation and priority fixture costs; disbursements awarded as fixed by the registrar.
Legal Topics
Proposal Under Part XV, Approval of Proposal, Costs for Preparation, Priority Fixture, Disclosure of Assets and Companies, Statement of Affairs, Disbursements
Insolvency Bankruptcy Civil Procedure Costs Proposal Under Part XV Approval of Proposal Costs for Preparation Priority Fixture +3 more

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Parties

Susan Spencer

Plaintiff (insolvent; Proposer)

Myles John Prestidge

Respondent (adjudication Applicant)

Official Assignee in Bankruptcy of the property of Kim Hilton Spencer

Objector (official Assignee)

Procedural Posture

Application for Approval of a Proposal Under Part XV of the Insolvency Act 1967 and Related Adjudication Proceedings / Hearing Fixed 25 February 2008; Proposal Withdrawn and Adjudication Application Withdrawn; Post Withdrawal Application for Costs Determined

Legal Issues

  1. 1 Whether official assignee entitled to costs for full-day preparation despite hearing taking a quarter day
  2. 2 Whether insolvent should pay costs for application for a priority fixture
  3. 3 Whether deficiencies in the proposal and nondisclosure justified expedited steps and additional costs

Ratio Decidendi

Because the insolvent's settlement was only communicated on the hearing date after substantial preparation by the official assignee and because the official assignee had reasonable grounds (deficiencies in the proposal and evidence of undisclosed companies/trust and a significant asset sale) to seek a priority fixture, the court awarded the official assignee costs on a 2B basis including full-day preparation costs and costs for the priority fixture, plus disbursements as fixed by the registrar.

Court Disposition

Official Assignee awarded costs against the insolvent; costs assessed on a 2B basis including full-day preparation and priority fixture costs; disbursements awarded as fixed by the registrar.

Orders

  • Insolvent to pay official assignee costs assessed on a 2B basis including costs for preparing for a full day hearing on 25 February 2008.
  • Insolvent to pay official assignee costs incurred in applying for a priority fixture.