BARGE V FREEPORT DEVELOPMENT LTD AND ORS HC AK CIV-2002-404-1771

BARGE V FREEPORT DEVELOPMENT LTD AND ORS HC AK CIV-2002-404-1771

The Judge refused recusal for apparent bias because prior interlocutory provisional views did not create a reasonable appearance of lack of impartiality; FDL was held primarily responsible for obstructive, dishonest and improper conduct up to 28 February 2004 and was ordered to pay indemnity costs for that period; the trustees were held liable for costs after that date and ordered to pay increased costs (category 2B plus specified percentage increases) for interlocutory and trial work; penalty interest for late settlement was fixed and both costs and interest are allowable as set-off against the purchase price.

Citation
openlaw-2380f9a5_f59f_4c33_9da4_4f56459c17dd.pdf
Parties
Plaintiff: Ivan Barge; First Defendant: Freeport Development Ltd; Second Defendant: Shou-Lung Chiao; Third Defendant: Jiao Yi Hua; Fourth Defendants: Jiao Yi Hua, Hsueh Wi Huang and Shou Chen Chiao as trustees of the Harsono Family Trust
Court
High Court
Jurisdiction
New Zealand
Judgment Date
22 February 2006
Procedural Posture
Specific Performance (contract) and Consequential Equitable Relief / Post Trial Determination of Costs, Interest and Consequential Orders Following Judgment for Specific Performance
Outcome
Application for disqualification dismissed; costs awarded to plaintiff against defendants in apportioned form; penalty interest awarded; rights of set-off granted to plaintiff.
Legal Topics
Specific Performance, Indemnity Costs, Increased Costs, Apparent Bias, Mortgagee Sale, Fraudulent Transaction, Set Off, Penalty Interest
Contract Equity Civil Procedure Property Law Trusts Specific Performance Indemnity Costs Increased Costs +5 more

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Parties

Ivan Barge

Plaintiff

Freeport Development Ltd

First Defendant

Shou-Lung Chiao

Second Defendant

Jiao Yi Hua

Third Defendant

Jiao Yi Hua, Hsueh Wi Huang and Shou Chen Chiao as trustees of the Harsono Family Trust

Fourth Defendants

Procedural Posture

Specific Performance (contract) and Consequential Equitable Relief / Post Trial Determination of Costs, Interest and Consequential Orders Following Judgment for Specific Performance

Legal Issues

  1. 1 Whether the Judge should be disqualified for apparent bias
  2. 2 Apportionment of costs between defendants (FDL v trustees v individual mortgagee)
  3. 3 Whether indemnity costs are appropriate against FDL

Ratio Decidendi

The Judge refused recusal for apparent bias because prior interlocutory provisional views did not create a reasonable appearance of lack of impartiality; FDL was held primarily responsible for obstructive, dishonest and improper conduct up to 28 February 2004 and was ordered to pay indemnity costs for that period; the trustees were held liable for costs after that date and ordered to pay increased costs (category 2B plus specified percentage increases) for interlocutory and trial work; penalty interest for late settlement was fixed and both costs and interest are allowable as set-off against the purchase price.

Court Disposition

Application for disqualification dismissed; costs awarded to plaintiff against defendants in apportioned form; penalty interest awarded; rights of set-off granted to plaintiff.

Orders

  • Freeport Development Ltd to pay plaintiff costs of 269,946.00 NZD (plus GST) and disbursements of 31,844.75 NZD (plus GST)
  • Plaintiff entitled to set-off FDL's liability for those costs and disbursements against the balance of the purchase price payable on settlement