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

CIR V KADESH FARM LIMITED HC ROT CIV 2006-463-000019 22 August 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: 22 August 2007 at 3.00p.m.FINAL JUDGMENT OF ASSOCIATE JUDGE ABBOTT RE COSTS PAYABLE TO LIQUIDATORSThis judgment was delivered by me on 22 August 2007 at 3.00p.m. pursuant to Rule 540(4) of the High Court Rules.Registrar/ Deputy RegistrarSolicitors: Sharp Tudhope, Private Bag 12020, Tauranga McKechnie Quirke, PO Box 242, Rotorua[1] On 27 July 2007 I gave an interim judgment on an application by the liquidators for the fixing of costs payable to them for their work in the liquidation of the defendant. I found that the costs being claimed were reasonable. However, on the evidence before me I was unable to determine whether or not the liquidators had compromised their claim for those costs under an accord and satisfaction arising from their banking of a cheque for part of the sum. I invited counsel to file further memoranda advising the Court when the cheque was banked and any other matters which could be relevant to whether or not there had been an accord and satisfaction. Counsel have filed further memoranda. [2] I find that the liquidators' banking of the cheque does not constitute an accord and satisfaction. It is not clear when the cheque and its covering letter (in which the directors said that they would take banking of the cheque to be acceptance of that sum as full and final settlement of the account) reached the liquidators. The covering letter from the directors was dated 26 November 2006 but the cheque was dated 20 December 2006. The liquidators' solicitors wrote back to the directors by letter dated 18 December 2006 advising that the liquidators did not accept the cheque in full and final settlement, and that it would be accepted as a partial payment only. The liquidators banked the cheque on 19 December 2006 (presumably in anticipation of collection the following day). I am satisfied as a matter of fact that there was no agreement to accept the cheque in satisfaction of the larger disputed sum: H B F Dalgety Limited v Morton [1987] 1NZLR411. [3] Counsel for the defendant notes that the letter from the liquidators' solicitors rejecting the directors' stipulation that it was to be in full and final settlement, was not received by them until 22 December 2006. That is not material to the question whether the liquidators had accepted it with that condition. They made their rejection clear at time of posting of the letter on 18 December 2006, ahead of banking the cheque.[4] The liquidators are entitled to seal a judgment for their costs in the sum sought, namely, $7,105.37, for the reasons set out in my interim judgment of 27 July 2007.________________________Associate Judge Abbott