CIR V KADESH FARM LIMITED HC ROT CIV 2006-463-000019

CIR V KADESH FARM LIMITED HC ROT CIV 2006-463-000019 12 September 2007IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY CIV 2006-463-000019BETWEEN THE COMMISSIONER OF INLAND REVENUE Plaintiff AND KADESH FARM LIMITED Defendant Hearing: By memoranda Counsel: C Speksnijder for plaintiff S M Kai Fong for defendant Judgment: 12 September 2007 at 4.00pmCOSTS JUDGMENT OF ASSOCIATE JUDGE ABBOTTThis judgment was delivered by me on 12 September 2007at 4.00 p.m. pursuant to Rule 540(4) of the High Court Rules.Registrar/ Deputy RegistrarSolicitors: Sharp Tudhope, Private Bag 12020, Tauranga McKechnic Quirke, PO Box 242, Rotorua[1] On 4 September 2007 I issued a final judgment settling costs payable by the defendant to the liquidators pursuant to an order made on 10 July 2006 setting aside an earlier order for liquidation of the defendant. [2] The defendant had disputed the costs being sought by the liquidators. It had made a part payment of less than 50% of the sum being claimed by the liquidators. [3] I directed the filing of memoranda of submissions. Two issues were raised by the defendant. I issued an interim judgment on 27 July 2007 determining one of them (reasonableness of the costs) and directed filing of further submissions on the second issue (accord and satisfaction). I issued a further judgment on the second issue on 22 August 2007, but later recalled that and issued a final judgment on 4 September 2007 to correct an omission to take the part-payment into account. [4] The liquidators now seek costs for the preparation of submissions to resolve this dispute. They seek costs for preparation of two memoranda. The first one was responding to the defendant's memorandum raising these two issues, and the second one addressed the accord and satisfaction issue. They do not seek costs on their initial memorandum asking the Court to approve sealing of an order in the sum claimed from the defendant (and subsequently awarded less the part-payment), nor on the memorandum seeking correction of the sum now payable. [5] The defendant asks that the Court take into account costs incurred by the defendant in having to ensure that judgment was not sealed for the full amount originally sought (that is, without allowing for the part-payment). Having said that, counsel's memorandum appears to be accepting the claim being made by the liquidators (time of 0.5 days on a 2B basis). [6] The liquidators were obliged to have this issue resolved by the Court, and were successful in their submission. There was some confusion over the way the Court was being asked to seal costs (as at the date the order for setting aside liquidation was made), but the liquidators do not seek any additional costs in that respect. In my view that offsets any costs incurred by the defendant in asking for the judgment of 22 August 2007 to be corrected.[7] The Court has a discretion in relation to costs, to be exercised having regard to general principles including that a successful party should be entitled to costs. The liquidators were successful. I regard the costs being claimed for filing their memoranda as reasonable. [8] The defendant is to pay costs to the liquidators for preparation of their memoranda of 13 June 2007 and 7 August 2007 in the sum of $800.00. I fix these costs in terms of item 11 of schedule 3 to the High Court Rules, with a total time allowance of 0.5 days on a 2B basis._________________________Associate Judge Abbott