TASTY FRESH PRODUCE LTD (IN LIQUIDATION) v LOWE [2017] NZHC 1448

TASTY FRESH PRODUCE LTD (IN LIQUIDATION) v LOWE [2017] NZHC 1448

The Court held the appropriate assessment period for liability began when the second defendant's briefs were due (12 August); the second defendant's belated filing of evidence and an amended statement of defence were operative causes of wasted costs incurred between that date and 1 November, so partial awards for specified categories were justified; some claims (preparation of plaintiffs' briefs and expert fees) are reserved for potential later claim; global punitive uplift was denied; each applicant awarded $892 costs for the wasted costs application.

Citation
[2017] NZHC 1448
Parties
First Plaintiff: Tasty Fresh Produce Limited (in liquidation); Plaintiffs (liquidators): Viviene Judith Madsen-Ries and Henry David Levin (as liquidators of Tasty Fresh Produce Limited); First Defendant: Jimmy Lowe; Second Defendant: Stephen Lowe; Third Defendant: Vanessa Ronda Leaver (as trustee of the Kirk Lowe Family Trust); Fourth Defendant (trustee): Euan Charles Lawrie; Fourth Defendant (trustee): Pukekohe Law Office Trustee Company Limited; Fifth Defendant: Vanessa Ronda Leaver; Third Party: Carpenter Pratt Chartered Accountants Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
28 June 2017
Procedural Posture
Companies Act 1993 Liquidation; Interlocutory Wasted Costs Application / Application Following Vacated Trial Fixture (interlocutory)
Outcome
Second defendant ordered to pay wasted costs to plaintiffs, third to fifth defendants and third party; payment not required pending further order following determination of substantive claim; certain claims reserved; no punitive uplift ordered; each applicant awarded $892 for the wasted costs application.
Legal Topics
Liquidation, Wasted Costs, Adjournment, Pre Trial Directions, Expert Evidence
Company Law Civil Procedure Costs Liquidation Wasted Costs Adjournment Pre Trial Directions Expert Evidence

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 3 Authorities cited 5 Party arguments 2 Amounts and remedies 5
Sign in to unlock

Parties

Tasty Fresh Produce Limited (in liquidation)

First Plaintiff

Viviene Judith Madsen-Ries and Henry David Levin (as liquidators of Tasty Fresh Produce Limited)

Plaintiffs (liquidators)

Jimmy Lowe

First Defendant

Stephen Lowe

Second Defendant

Vanessa Ronda Leaver (as trustee of the Kirk Lowe Family Trust)

Third Defendant

Euan Charles Lawrie

Fourth Defendant (trustee)

Pukekohe Law Office Trustee Company Limited

Fourth Defendant (trustee)

Vanessa Ronda Leaver

Fifth Defendant

Carpenter Pratt Chartered Accountants Limited

Third Party

Procedural Posture

Companies Act 1993 Liquidation; Interlocutory Wasted Costs Application / Application Following Vacated Trial Fixture (interlocutory)

Legal Issues

  1. 1 Whether the second defendant is liable for wasted costs arising from late filing of evidence and amended defence
  2. 2 Causation: whether defaults by the second defendant were the operative cause of the adjournment
  3. 3 Quantum: what portion of claimed costs were wasted and recoverable

Ratio Decidendi

The Court held the appropriate assessment period for liability began when the second defendant's briefs were due (12 August); the second defendant's belated filing of evidence and an amended statement of defence were operative causes of wasted costs incurred between that date and 1 November, so partial awards for specified categories were justified; some claims (preparation of plaintiffs' briefs and expert fees) are reserved for potential later claim; global punitive uplift was denied; each applicant awarded $892 costs for the wasted costs application.

Court Disposition

Second defendant ordered to pay wasted costs to plaintiffs, third to fifth defendants and third party; payment not required pending further order following determination of substantive claim; certain claims reserved; no punitive uplift ordered; each applicant awarded $892 for the wasted costs application.

Orders

  • Second defendant to pay to the plaintiffs, the third to fifth defendants and the third party costs to be assessed as specified in the judgment (items allowed at [31]-[35])
  • Second defendant is not required to make payment pending further order of this Court following determination of the substantive claim