MY VIRTUAL HOME INTERNATIONAL LTD (IN REC) AND (IN LIQN) V NGATI TAMA CUSTODIAN TRUSTEE LTD HC AK CIV-2009-443-000548

MY VIRTUAL HOME INTERNATIONAL LTD (IN REC) AND (IN LIQN) V NGATI TAMA CUSTODIAN TRUSTEE LTD HC AK CIV-2009-443-000548

Costs were fixed against all plaintiffs jointly and severally. The proceedings warranted Category 2 (not Category 3) and time band B. An uplift of one third (33.33%) was justified because the plaintiffs unnecessarily increased time and expense (late bundles, excessive objectionable evidence, poor presentation). Costs payable: defendants 1,3,4,5 and 6 $57,152 plus disbursements; defendant 2 $37,662.66 plus disbursements; uplift for second defendant limited to preparation time as acknowledged.

Citation
openlaw-1bcea0fc_36bd_4344_b417_ddb0f060b5ab.pdf
Parties
First Plaintiff: My Virtual Home International Ltd (in receivership and in liquidation); Second Plaintiff: Open Group Ltd; Third Plaintiff: David William Phillips; Fourth Plaintiff: MVH Group Limited; First Defendant: Ngati Tama Custodian Trustee Ltd; Second Defendant: Rodney Ivan Martin; Third Defendant: Gregory Lloyd White; Fourth Defendant: Te Runanga o Ngati Tama; Fifth Defendant: The Custodians and Elders and Trustees of the Ngati Tama iwi; Sixth Defendant: Homesoft Group Pty Ltd (previously Brisbane Software Group Pty Ltd)
Court
High Court
Jurisdiction
New Zealand
Judgment Date
16 September 2011
Procedural Posture
Civil (preliminary Questions; Company/insolvency and Trust Issues) / Costs Determination After Judgment on Preliminary Questions (post Judgment Fixing of Costs)
Outcome
Costs awarded to defendants; fixed amounts set and ordered to be paid jointly and severally by the plaintiffs
Legal Topics
Costs Fixing, Preliminary Questions, Receivership and Liquidation, Admissibility of Evidence, Representation and Withdrawal of Counsel, Costs Uplift/scale Banding
Civil Procedure Costs Insolvency Trusts Evidence Costs Fixing Preliminary Questions Receivership and Liquidation +3 more

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Parties

My Virtual Home International Ltd (in receivership and in liquidation)

First Plaintiff

Open Group Ltd

Second Plaintiff

David William Phillips

Third Plaintiff

MVH Group Limited

Fourth Plaintiff

Ngati Tama Custodian Trustee Ltd

First Defendant

Rodney Ivan Martin

Second Defendant

Gregory Lloyd White

Third Defendant

Te Runanga o Ngati Tama

Fourth Defendant

The Custodians and Elders and Trustees of the Ngati Tama iwi

Fifth Defendant

Homesoft Group Pty Ltd (previously Brisbane Software Group Pty Ltd)

Sixth Defendant

Procedural Posture

Civil (preliminary Questions; Company/insolvency and Trust Issues) / Costs Determination After Judgment on Preliminary Questions (post Judgment Fixing of Costs)

Legal Issues

  1. 1 Whether costs should be fixed now or reserved pending full trial
  2. 2 Whether all plaintiffs should be jointly and severally liable for costs despite first plaintiff being in receivership/liquidation
  3. 3 Appropriate costs category and time band (2B v 2C v 3)

Ratio Decidendi

Costs were fixed against all plaintiffs jointly and severally. The proceedings warranted Category 2 (not Category 3) and time band B. An uplift of one third (33.33%) was justified because the plaintiffs unnecessarily increased time and expense (late bundles, excessive objectionable evidence, poor presentation). Costs payable: defendants 1,3,4,5 and 6 $57,152 plus disbursements; defendant 2 $37,662.66 plus disbursements; uplift for second defendant limited to preparation time as acknowledged.

Court Disposition

Costs awarded to defendants; fixed amounts set and ordered to be paid jointly and severally by the plaintiffs

Orders

  • Costs to first, third, fourth, fifth and sixth defendants fixed at $57,152 plus disbursements as fixed by the Registrar
  • Costs to second defendant fixed at $37,662.66 plus disbursements as fixed by the Registrar