FINITOR LIMITED V GJ LOGAN AND SP MCLEOD HC NAP CIV-2010-441-646

FINITOR LIMITED V GJ LOGAN AND SP MCLEOD HC NAP CIV-2010-441-646

The presumption in r 15.23 applies and was not displaced on the facts: given the company's apparent insolvency, major disputes between shareholders and lack of evidence to displace the presumption, the second applicants (the Johnsons) who discontinued the stay application must pay the respondents' costs; quantum agreed at Category 2B ($3,008).

Citation
openlaw-cb1daa58_3355_412f_bc13_560328a65dee.pdf
Parties
First Applicant: Finitor Limited; Second Applicants: Tony John Johnson and Katherine Frances Johnson; First Respondents: Gerard Joseph Logan and Stella Pamela McLeod; Second Respondents: Gerard Joseph Logan, Stella Pamela McLeod and Graham Hunter Throp as trustees of the East Links Trust
Court
High Court
Jurisdiction
New Zealand
Judgment Date
30 May 2011
Procedural Posture
Application Under Companies Act 1993 S174 (liquidation) / Costs on Discontinuance Hearing
Outcome
Discontinuing applicants ordered to pay respondents' costs
Legal Topics
Liquidation, Stay Application, Discontinuance, Costs
Company Law Insolvency Civil Procedure Liquidation Stay Application Discontinuance Costs

Case Brief

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Parties

Finitor Limited

First Applicant

Tony John Johnson and Katherine Frances Johnson

Second Applicants

Gerard Joseph Logan and Stella Pamela McLeod

First Respondents

Gerard Joseph Logan, Stella Pamela McLeod and Graham Hunter Throp as trustees of the East Links Trust

Second Respondents

Procedural Posture

Application Under Companies Act 1993 S174 (liquidation) / Costs on Discontinuance Hearing

Legal Issues

  1. 1 Whether a plaintiff who discontinues must pay defendant's costs under r 15.23 High Court Rules
  2. 2 Whether the presumption in r 15.23 is displaced by circumstances making a different outcome just and equitable
  3. 3 Appropriate quantum/category of costs to be awarded on discontinuance

Ratio Decidendi

The presumption in r 15.23 applies and was not displaced on the facts: given the company's apparent insolvency, major disputes between shareholders and lack of evidence to displace the presumption, the second applicants (the Johnsons) who discontinued the stay application must pay the respondents' costs; quantum agreed at Category 2B ($3,008).

Court Disposition

Discontinuing applicants ordered to pay respondents' costs

Orders

  • Second applicants Tony John Johnson and Katherine Frances Johnson to pay first and second respondents costs on the discontinued stay application totalling $3,008.00 on a Category 2B basis