GIBSON (BANKRUPT) V FISHER HC AK CIV-2006-404-103

GIBSON (BANKRUPT) V FISHER HC AK CIV-2006-404-103

Proceedings were struck out because they had been pending for five years, remained stayed since July 2009, both plaintiffs were bankrupt and the Official Assignee indicated no intention to continue proceedings or assign the right, thereby entitling defendants to certainty; costs on the security for costs application...

Source-derived case information.

Citation
openlaw-0fb8cf34_a434_4dad_b1f8_c28e93bf5f7d.pdf
Parties
First Plaintiff (bankrupt): Neville James Gibson; Second Plaintiff (bankrupt, Proceeding Stayed): Patrick Joseph McCormick; First Defendant: Michael John Fisher; Second Defendant: Richard Digby Wallis; Third Defendant (discontinued): Hussey & Co; Fourth Defendant (discontinued): Hunt Edwards; Fifth Defendant: Legal Services Agency; Sixth Defendant (discontinued): Clancy Fisher Oxner Bryant
Court
High Court
Jurisdiction
New Zealand
Judgment Date
28 June 2011
Procedural Posture
High Court Civil Proceeding / Proceedings Stayed; Security for Costs Application Determined; Application to Strike Out Granted on Papers
Outcome
Proceedings struck out; costs on the security for costs application fixed for defendants on a 2B basis with disbursements as fixed by the Registrar; leave reserved to apply about security funds and for further directions.
Legal Topics
Security for Costs, Stay of Proceedings, Striking Out for Delay, Official Assignee Rights Under Insolvency Act 2006, Costs Assessment on Scale 2 B
Civil Procedure Insolvency Law Bankruptcy Costs Security for Costs Stay of Proceedings Striking Out for Delay Official Assignee Rights Under Insolvency Act 2006 +1 more

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Parties

Neville James Gibson

First Plaintiff (bankrupt)

Patrick Joseph McCormick

Second Plaintiff (bankrupt, Proceeding Stayed)

Michael John Fisher

First Defendant

Richard Digby Wallis

Second Defendant

Hussey & Co

Third Defendant (discontinued)

Hunt Edwards

Fourth Defendant (discontinued)

Legal Services Agency

Fifth Defendant

Clancy Fisher Oxner Bryant

Sixth Defendant (discontinued)

Procedural Posture

High Court Civil Proceeding / Proceedings Stayed; Security for Costs Application Determined; Application to Strike Out Granted on Papers

Legal Issues

  1. 1 Whether proceedings should be struck out given prolonged delay and stay
  2. 2 Whether defendants are entitled to certainty where plaintiffs are bankrupt and Official Assignee does not intend to continue
  3. 3 Fixing costs for the earlier security for costs application and dealing with released security

Ratio Decidendi

Proceedings were struck out because they had been pending for five years, remained stayed since July 2009, both plaintiffs were bankrupt and the Official Assignee indicated no intention to continue proceedings or assign the right, thereby entitling defendants to certainty; costs on the security for costs application were fixed on a 2B basis with disbursements and leave was reserved regarding release of any security funds.

Court Disposition

Proceedings struck out; costs on the security for costs application fixed for defendants on a 2B basis with disbursements as fixed by the Registrar; leave reserved to apply about security funds and for further directions.

Orders

  • Proceedings struck out
  • Costs on the security for costs application awarded to applicants on a 2B basis together with disbursements as fixed by the Registrar