WAIMATE INVESTMENTS LIMITED (IN LIQUIDATION) AND ANOR V O'DEA HC NWP CIV-2003-443-000045

WAIMATE INVESTMENTS LIMITED (IN LIQUIDATION) AND ANOR V O'DEA HC NWP CIV-2003-443-000045

Because costs in the prior High Court proceeding had not been fixed there was no stay under r 476 and the court would not fix those costs on the present interlocutory application without further information; the High Court had no jurisdiction to fix District Court costs; balancing the factors relevant to security for costs (probable inability to pay, bona fides of the liquidators, public interest and prejudice to the defendant) led to refusal of the security for costs application.

Citation
openlaw-4c6387bf_6ae7_48d8_a351_c03b1f406aea.pdf
Parties
First Plaintiff: Waimate Investments Limited (In Liquidation); Second Plaintiff: Manaia Investment Company Limited (In Liquidation); Defendant: Gavin Richard O'Dea
Court
High Court
Jurisdiction
New Zealand
Judgment Date
14 March 2006
Procedural Posture
Companies Act 1955 Proceedings (liquidation) / Interlocutory Application (costs Fixation and Security for Costs)
Outcome
Application partly adjourned and otherwise dismissed: costs fixation in prior High Court proceeding adjourned for further information; application to fix District Court costs dismissed; application for security for costs dismissed; plaintiffs awarded costs on a 2B basis.
Legal Topics
Security for Costs, Costs on Discontinuance, Stay Under Court Rules, Jurisdiction to Fix Costs, Liquidator Litigation, Fiduciary Duty, Strike Out Applications
Company Law Civil Procedure Costs Law Security for Costs Costs on Discontinuance Stay Under Court Rules Jurisdiction to Fix Costs Liquidator Litigation +2 more

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Parties

Waimate Investments Limited (In Liquidation)

First Plaintiff

Manaia Investment Company Limited (In Liquidation)

Second Plaintiff

Gavin Richard O'Dea

Defendant

Procedural Posture

Companies Act 1955 Proceedings (liquidation) / Interlocutory Application (costs Fixation and Security for Costs)

Legal Issues

  1. 1 Whether costs in the prior High Court proceeding (CP02/97/CP13/97) had been fixed and whether r 476 created a stay
  2. 2 Whether the High Court could fix costs of an abandoned District Court proceeding
  3. 3 Whether plaintiffs in liquidation should be ordered to provide security for costs in the present proceedings

Ratio Decidendi

Because costs in the prior High Court proceeding had not been fixed there was no stay under r 476 and the court would not fix those costs on the present interlocutory application without further information; the High Court had no jurisdiction to fix District Court costs; balancing the factors relevant to security for costs (probable inability to pay, bona fides of the liquidators, public interest and prejudice to the defendant) led to refusal of the security for costs application.

Court Disposition

Application partly adjourned and otherwise dismissed: costs fixation in prior High Court proceeding adjourned for further information; application to fix District Court costs dismissed; application for security for costs dismissed; plaintiffs awarded costs on a 2B basis.

Orders

  • Application for fixing costs in CP02/97/CP13/97 adjourned pending detailed information and submissions on jurisdiction and costs sought
  • Application to fix costs of the Hawera District Court proceedings dismissed