PERPETUAL TRUST LIMITED v BANK OF NEW ZEALAND [2013] NZHC 1800

PERPETUAL TRUST LIMITED v BANK OF NEW ZEALAND [2013] NZHC 1800

Perpetual acted reasonably in commencing and prosecuting the proceedings to recover the Deloitte fee; Dorchester was in default and under clauses 6.1.3 and 6.1.5 those enforcement costs are payable and constitute a first charge on Dorchester's charged assets; accordingly Perpetual may recover the stated costs from...

Source-derived case information.

Citation
[2013] NZHC 1800
Parties
Applicant: Perpetual Trust Limited; First Respondent: Bank of New Zealand; Second Respondent: Dorchester Finance Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
17 July 2013
Procedural Posture
Originating Application Under Personal Property Securities Act 1999 and Property Law Act 2007 / Judgment Following Hearing (final Determination)
Outcome
Judgment for Perpetual Trust Limited: Dorchester to pay Perpetual's costs of the proceedings and BNZ's watching-brief costs; BNZ is entitled to apply funds on request in accordance with the trust deed or s108 PPSA.
Legal Topics
Enforcement of Trust Deed, Recovery of Trustee Expenses, First Ranking Charge Over Charged Assets, Application of S108 PPSA, Indemnity Solicitor/client Costs, Reasonableness of Litigation Expenses
Trusts Secured Transactions Personal Property Securities Act 1999 Property Law Costs Civil Procedure Enforcement of Trust Deed Recovery of Trustee Expenses +4 more

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Parties

Perpetual Trust Limited

Applicant

Bank of New Zealand

First Respondent

Dorchester Finance Limited

Second Respondent

Procedural Posture

Originating Application Under Personal Property Securities Act 1999 and Property Law Act 2007 / Judgment Following Hearing (final Determination)

Legal Issues

  1. 1 Whether the costs incurred by the trustee in these proceedings were reasonably incurred under clauses 6.1.3 and 6.1.5 of the trust deed
  2. 2 Whether Perpetual may recover those costs directly from Dorchester's bank accounts held with BNZ under the trust deed or s108 PPSA (or s148 PLA)
  3. 3 Whether a stay of the underlying judgment was required before enforcement measures could be taken

Ratio Decidendi

Perpetual acted reasonably in commencing and prosecuting the proceedings to recover the Deloitte fee; Dorchester was in default and under clauses 6.1.3 and 6.1.5 those enforcement costs are payable and constitute a first charge on Dorchester's charged assets; accordingly Perpetual may recover the stated costs from Dorchester and, if necessary, require BNZ to apply Dorchester's funds held at the bank pursuant to the trust deed or s108 PPSA.

Court Disposition

Judgment for Perpetual Trust Limited: Dorchester to pay Perpetual's costs of the proceedings and BNZ's watching-brief costs; BNZ is entitled to apply funds on request in accordance with the trust deed or s108 PPSA.

Orders

  • Dorchester Finance Limited is to pay Perpetual Trust Limited costs of the original application and amended application to date of hearing in the sum of 49670.45 NZD
  • Dorchester Finance Limited is to pay Perpetual Trust Limited solicitor/client (indemnity) costs for the hearing before the Court (costs of hearing to be fixed if necessary)