ALBACORE FISHERIES LIMITED V SUNSAI LIMITED HC WN CIV-2010-485-2395
Costs were refused because Sunsai Limited was in voluntary liquidation engaging s 248(1)(c)(i) which prevents continuation of proceedings to recover costs absent liquidator consent or court order, and because the applicant provided sparse submissions and failed to pursue the matter or respond to the court's...
Source-derived case information.
- Citation
- openlaw-10a19b68_8f48_408c_a761_d3f39a33f705.pdf
- Parties
- Applicant: Albacore Fisheries Limited; Respondent: Sunsai Limited; Non Party Former Director: Ian Pharaoh
- Court
- High Court
- Jurisdiction
- New Zealand
- Judgment Date
- 17 May 2013
- Procedural Posture
- Company Restoration and Costs Application / Costs Application (on Papers)
- Outcome
- Application for costs dismissed
- Legal Topics
- Company Restoration, Voluntary Liquidation and S 248, Costs Awards, Standing to Continue Proceedings
Source-derived case record
Summary, issues, holding and outcome
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Parties
Albacore Fisheries Limited
Applicant
Sunsai Limited
Respondent
Ian Pharaoh
Non Party Former Director
Procedural Posture
Company Restoration and Costs Application / Costs Application (on Papers)
Legal Issues
- 1 Whether an award of costs could be made to the applicant given Sunsai Limited has entered voluntary liquidation
- 2 Whether s 248(1)(c)(i) prevents continuation of costs proceedings against the company or its property
- 3 Whether the applicant pursued the substantive matter sufficiently to justify costs
Ratio Decidendi
Costs were refused because Sunsai Limited was in voluntary liquidation engaging s 248(1)(c)(i) which prevents continuation of proceedings to recover costs absent liquidator consent or court order, and because the applicant provided sparse submissions and failed to pursue the matter or respond to the court's directions, leaving no basis to award costs.
Court Disposition
Application for costs dismissed
Orders
- Application for costs dismissed
- Registrar to endorse judgment with delivery time 10:30am on 17 May 2013 in accordance with r 11.5
Full Case Text
Judgment text and source record
1 paragraphs
ALBACORE FISHERIES LIMITED V SUNSAI LIMITED HC WN CIV-2010-485-2395 [17 May 2013]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYCIV-2010-485-2395[2013] NZHC 1124BETWEEN ALBACORE FISHERIES LIMITEDApplicantAND SUNSAI LIMITEDRespondentHearing: On papersCounsel: K Smith for ApplicantNo appearance for RespondentR Gordon for Ian PharaohJudgment: 17 May 2013In accordance with r 11.5, I direct the Registrar to endorse this judgment with the delivery time of 10.30am on the 17th May 2013.JUDGMENT OF WILLIAMS J (COSTS)[1] On 10 February 2012, I made an order restoring Sunsai Limited to the register of companies to allow Albacore Fisheries Limited to pursue it in respect of a dispute over defective product that it purchased. I understand that Albacore Fisheries Limited has taken no steps in that respect in the interim.[2] Meanwhile however, Mr Gartrell, has applied for costs in respect of his successful application. His application is sparse to say the least.[3] In rejoinder, Mr Gordon for Mr Ian Pharaoh (a non-party but former director of Sunsai Limited), submits that Sunsai Limited has now been put into voluntary liquidation. The effect of that is that s 248(1)(c)(i) is engaged. This provides that no person may commence or continue legal proceedings against Sunsai Limited or inrelation to its property unless the company's liquidator agrees or this court ordersotherwise.[4] That presents a significant obstacle for Mr Gartrell. Clearly applying for costs in a successful application amounts to continuing legal proceedings against the company or in relation to its property.[5] Although presented with this significant obstacle, it appears that Mr Gartrell has gone to ground.[6] I issued a minute on 29 April 2013 asking Mr Gartrell for any submissions on these points by 3 May 2013. He requested an extension until 6 May which I granted. That date has come and gone without further response.[7] I am satisfied therefore that no award of costs should be made. I see no basis upon which I would make such an order in this case.[8] The applicant has taken no steps since the original order was made and counsel has not seen fit to make submissions to the court on the question.[9] The application for costs is dismissed accordingly.___________________________Williams J