FERREIRA V THE REGISTRAR OF COMPANIES HC AK CIV-2009-404-1800

FERREIRA V THE REGISTRAR OF COMPANIES HC AK CIV-2009-404-1800 10 July 2009IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV-2009-404-1800UNDER Section 329 of the Companies Act 1993 IN THE MATTER OF AGAPE HOLISTIC RETREAT CORPORATION LIMITED (Struck off) AND An application to restore AGAPE HOLISTIC RETREAT CORPORATION LIMITED to the Register BETWEEN PETER FERREIRA Plaintiff AND THE REGISTRAR OF COMPANIES Defendant AND BANK OF NEW ZEALAND AGAPE-HIGH-Q HOLISTIC HORSEMANSHIP CORPORATION LTD Hearing: Determined on the Papers Judgment: 10 July 2009 at 2:30 pmCOSTS JUDGMENT OF ASHER JThis judgment was delivered by me on 10 July 2009 at 2:30 pm pursuant to Rule 11.5 of the High Court Rules .. Registrar/Deputy Registrar .. DateSolicitors: DJG Cox, Rennie Cox, PO Box 6647, Auckland TJG Allan, Grove Darlow & Partners, PO Box 2882, Auckland GW Hall/SR Willetts, Buddle Findlay, PO Box 1433, Auckland[1] The plaintiff, Peter Ferreira ("Mr Ferreira"), seeks costs against the Bank of New Zealand in respect of the restoration to the Register of Agape Holistic Retreat Corporation Limited ("AHRC"). [2] AHRC was struck off from the Register after a failure to lodge a yearly return. Mr Ferreira is a shareholder in that company. Mr Ferreira's application to restore it to the Register had been opposed by the Bank of New Zealand, which had filed a statement of defence. Ultimately, however, a consent memorandum was signed and filed in which the Bank of New Zealand consented to the company's restoration. It was a term of the settlement that other proceedings in which the Bank of New Zealand was seeking the liquidation of ARHC were concluded by that company being placed in liquidation by consent. The Bank of New Zealand was to have costs at scale on a 2B basis in respect of that proceeding. [3] Mr Ferreira seeks costs on the basis that costs should follow the event, and because, he submits, the Bank's opposition to the reinstatement was unreasonable. That opposition forced the issue of the proceedings and resulted in the incurring of considerable legal costs. He asserts that effectively it was a tactical opposition, designed to achieve the desired result in the other proceedings. [4] The Bank of New Zealand opposes the making of any order for costs. It is critical of Mr Ferreira and his actions and motives. It sets out the history of the proceedings and the parallel proceedings. [5] Despite the Bank's careful submissions, the impression is left that it was tactical reasons that prompted the Bank to oppose the restoration. The Bank has effectively failed in its opposition to the restoration. There is no reason why the ordinary rule that costs should follow the event should not apply. [6] Costs will be awarded on a 2B basis. The Bank in its submissions suggests that Mr Ferreira's costs do not exceed $4,000. However, a memorandum has been filed annexing fees accounts indicating that costs of $5,911.00 have been incurred.Summary[7] I make the following orders: a) The Bank of New Zealand will pay the plaintiff's costs on a 2B basis, together with disbursements. b) Costs are to be calculated on the basis that there has not been a hearing. c) Any order for legal costs should not exceed $5,911.00. Asher J