MITRE 10 (NEW ZEALAND) LTD V THE REGISTRAR OF COMPANIES HC AK CIV-2005-404-4968
The Court exercised its inherent jurisdiction to order the return of the confidential membership agreement and awarded costs to Mitre 10 calculated by reference to category 2B but reduced by 33% because the Registrar was under a statutory duty to defend; resulting costs payable by the Registrar were $5,277 plus...
Source-derived case information.
- Citation
- openlaw-33012dfe_0e14_486a_b1fb_51f8ccadede2.pdf
- Parties
- Plaintiff: MITRE 10 (NEW ZEALAND) LTD; Defendant: THE REGISTRAR OF COMPANIES
- Court
- High Court
- Jurisdiction
- New Zealand
- Judgment Date
- 20 December 2005
- Procedural Posture
- Application Under Section 211(3) Companies Act 1993 / Costs Judgment (ancillary Applications Following Substantive Judgment)
- Outcome
- Order for return of confidential document and award of reduced costs to plaintiff
- Legal Topics
- Section 211(3) Companies Act 1993, Return of Confidential Document, Costs Assessment and Reduction, Inherent Jurisdiction
Source-derived case record
Summary, issues, holding and outcome
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Parties
MITRE 10 (NEW ZEALAND) LTD
Plaintiff
THE REGISTRAR OF COMPANIES
Defendant
Procedural Posture
Application Under Section 211(3) Companies Act 1993 / Costs Judgment (ancillary Applications Following Substantive Judgment)
Legal Issues
- 1 Whether the Court has jurisdiction to order return of a confidential document filed in court
- 2 Whether costs should be awarded to the plaintiff and at what level
- 3 Whether the defendant's statutory duty to defend justifies reduction of costs
Ratio Decidendi
The Court exercised its inherent jurisdiction to order the return of the confidential membership agreement and awarded costs to Mitre 10 calculated by reference to category 2B but reduced by 33% because the Registrar was under a statutory duty to defend; resulting costs payable by the Registrar were $5,277 plus disbursements of $1,700.
Court Disposition
Order for return of confidential document and award of reduced costs to plaintiff
Orders
- Registry to return to Mitre 10's solicitor, Mr Nigel Wilson, the document titled 'Mitre 10 Membership Agreement of Guarantee' (Exhibit A to Clarke affidavit filed 6 September 2005)
- Registrar of Companies to pay Mitre 10 costs in the sum of $5,277 and disbursements of $1,700
Full Case Text
Judgment text and source record
1 paragraphs
MITRE 10 (NEW ZEALAND) LTD V THE REGISTRAR OF COMPANIES HC AK CIV-2005-404-4968 20 December 2005IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV-2005-404-4968IN THE MATTER OF section 211(3) Companies Act 1993 BETWEEN MITRE 10 (NEW ZEALAND) LTD Plaintiff AND THE REGISTRAR OF COMPANIES Defendant Judgment: 20 December 2005COSTS JUDGMENT OF HARRISON JIn accordance with R540(4) I direct that the Registrar endorse this judgment with the delivery time of 11.20 a.m. on 20 December 2005_________________________________________________________________________________ SOLICITORS Nigel Wilson (Hibiscus Coast) for Plaintiff Meredith Connell (Auckland) for Defendant COUNSEL Nathan Gedye[1] I refer to my substantive judgment dated 28 October 2005 when I made two declarations in terms of s 211(3) Companies Act 1993 and clause 8.12 of a membership agreement entered into between Mitre 10 (New Zealand) Ltd and its shareholders. [2] Mitre 10's counsel, Mr Nathan Gedye, has since applied for two ancillary orders. [3] First, to preserve confidentiality, Mitre 10 seeks the return of a document filed in support of its originating application. I am satisfied that I have inherent jurisdiction to make an appropriate order. The Registrar does not oppose. [4] Accordingly, I direct the registry of this Court to return to Mitre 10's solicitor, Mr Nigel Wilson, a document entitled "Mitre 10 Membership Agreement of Guarantee", annexed as Exhibit "A" to an affidavit sworn by Mr R J Clarke in September 2005 and filed in this Court on 6 September 2005. [5] Second, on the basis that costs should follow the event, Mitre 10 seeks an award of costs calculated according to category 2B of $7975 plus disbursements, being a filing fee, of $1700. The Registrar's counsel, Mr Brian Dickey, does not oppose an order for costs but submits the amount should be less than category 2B because of certain facts, in particular that: (1) the Registrar was required to defend the proceeding by virtue of his statutory responsibilities (s 362(2) Companies Act 1963); (2) his decision to defend was vindicated by the terms of the declaration made by the Court in terms narrower than those originally sought; and (3) Mitre 10's application was based in part on Article 12.4 of its Constitution, which was ineffective as a source of the unanimous statutory agreement which was found to exist. [6] I agree that these factors, particularly the first, justify a reduction of 33% below the costs otherwise payable. That observation does not imply any criticism of Mitre 10's solicitors or counsel.[7] I order the Registrar of Companies to pay Mitre 10 costs in the sum of $5277 plus disbursements of $1700. ______________________________________ Rhys Harrison J