THE COMMISSIONER OF INLAND REVENUE v SUPER TURF LTD (in liq) [2018] NZHC 2430 [14 September 2018]

THE COMMISSIONER OF INLAND REVENUE v SUPER TURF LTD (in liq) [2018] NZHC 2430[14 September 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2018-404-0188[2018] NZHC 2430BETWEEN THE COMMISSIONER OF INLANDREVENUEPlaintiffAND SUPER TURF LIMITED (in liquidation)DefendantMAUKORO WATERCAREAHU WHENUAThe Owner of Super Turf LimitedHearing: On the papersAppearances: C Van der Merwe for the PlaintiffP V Shackleton for the LiquidatorsS Teepu for the Maukoro Watercare Ahu Whenua TrustJudgment: 14 September 2018COSTS JUDGMENT OF ASSOCIATE JUDGE SMITHThis judgment was delivered by me on 14 September 2018 at 2.00pm,pursuant to r 11.5 of the High Court RulesRegistrar/Deputy RegistrarSolicitors / Counsel:Inland Revenue, AucklandMeredith Connell, AucklandCopy to:Mr S Teepu[1] On 31 May 2018 I made an order putting the defendant, Super Turf Limited,into liquidation. I appointed Vivien Judith Madsen-Ries and David Sean Webbliquidators.[2] On 15 June 2018, Mr S Teepu, acting on behalf the Maukoro WatercareAhu Whenua Trust (the Trust), filed a document seeking to stay the liquidationproceedings. That application was listed for hearing on 20 July 2018, and I heardsubmissions from Mr Teepu, Mr Van der Merwe, and Mr Shackleton on that day. On24 July 2018 I gave a judgment dismissing the application, and inviting theCommissioner and the liquidators to file submissions on costs if they could not agreewith the Trust.[3] The Commissioner has since advised that she will not seek costs in the matter.[4] Mr Shackleton has filed a memorandum for the liquidators asking for costs ona 2B basis, in the sum of $2,230. Those costs are calculated on the following basis:(a) 0.4 of a day for filing a memorandum in opposition dated 5 July 2018;(b) 0.2 of a day for attending the hearing on 20 July 2018; and(c) 0.4 of a day for filing the costs memorandum.[5] Mr Shackleton advised that the liquidators wrote to the Trust setting out a costscalculation in which they acknowledged that the liquidators had not filed a formalnotice of opposition, and claiming costs of $1,338 (being 2B costs for filing thememorandum and attending the hearing on 20 July). The liquidators advised the Trustthat if costs could not be agreed on that basis, they would seek further costs for filinga costs memorandum.[6] Mr Teepu sent an email in reply to Mr Shackleton on 29 August 2018,asserting that the orders of the High Court were null and void. He advised thatdamages would be sought, presumably from the Crown.[7] The Trust did not file any formal costs submission. However Mr Teepu sentan email to the Registry dated 11 September 2018 advising:You are warned You are in breach of TE TURE WHENUA MAORI – MAORI LAND ACTSection 19: protected by the common laws of England,Judge Smiths Orders are NULL & VOID: under due process of law you areunder investigation Discussion and conclusions[8] The ordinary rule is that, while costs remain at the discretion of the Court,1 aparty who is successful in litigation is normally entitled to costs.2 In this case,Mr Teepu, acting on behalf of the Trust as shareholder, filed an application which wasdismissed; in the ordinary course, both the Commissioner as judgment creditor andthe liquidators would be entitled to costs.[9] The Commissioner has not sought costs, but in the circumstances of this caseI think the liquidators are entitled to some costs. The stance taken by the Trust had thecapacity to impede the liquidators in the discharge of their duties, and it was entirelyappropriate for them to be represented at the hearing. It was also appropriate for themto seek some costs in respect of that hearing, and if costs could not be agreed, onhaving the costs fixed by the Court.[10] Mr Teepu and the trustees of the Trust may hold sincere views on the issueswhich were the subject of my judgments of 31 May 2018 and 24 July 2018, but theCourt is obliged to apply the law as the Court sees it, and the Trust's argument did notprevail on either occasion. It is not now sufficient for the Trust to simply assert thatthe Court's judgment of 24 July 2018 was "null and void", and the Trust has offeredno reason why the ordinary principle that costs should follow the event should notapply in this case.[11] The liquidators, then, are entitled to some costs. I take note, however, that theliquidators were not required to file a notice of opposition, and that much of the ground1 High Court Rules, r 14.1.2 High Court Rules, r 14(1)(a).traversed at the hearing on 20 July 2018 appeared to cover matters already addressedin my judgment of 31 May 2018. In those circumstances, I think costs are moreappropriately dealt with on a category 1, band A basis. By my calculation, costs onthat basis would be $960.00. I make an order for costs against the Trust in favour ofthe defendant, in that sum.Associate Judge Smith