BURTON V THOMPSON HC AK CIV 2012-404-1465

BURTON V THOMPSON HC AK CIV 2012-404-1465 [15 October 2012]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV 2012-404-1465[2012] NZHC 2688BETWEEN REBECCA JESSIE BURTON, JAMESRICHARD BURTON AND ANNEMARJORIE BURTON AS TRUSTEES OFTHE REBECCA BURTON FAMILYTRUSTApplicantsAND BRENDAL MAREE THOMPSONFirst RespondentAND GRAEME ROBERT LITTLESecond RespondentAND BEBE CORPORATION LTDThird RespondentAND DOLLY BOUTIQUE LTDFourth RespondentAND FIRST CHOICE COLLECTIONS (NZ)LTDFifth RespondentHearing: (on the papers)Counsel: J K Goodall for ApplicantsA J Wedekind for First-Fourth RespondentsNo appearance by, or on behalf of, Fifth RespondentJudgment: 15 October 2012JUDGMENT (NO. 3) OF HEATH JThis judgment was delivered by me on 15 October 2012 at 2.15pm pursuant to Rule 11.5 of the High Court RulesRegistrar/Deputy Registrar[1] In a judgment given on 13 June 2012,1 I dismissed an application by the trustees of the Rebecca Burton Family Trust (the Trust) to bring a derivative action in the name of First Choice Collections NZ Ltd (First Choice). I also discharged a preservation order made on 20 March 2012 by Woodhouse J, substituting it with one in different terms and for a limited duration.2[2] The purpose of the substituted preservation order was to prevent dissipation of assets allegedly belonging to First Choice for a period of 20 working days so that the receiver of that company could determine, before the expiry of that time, whether to seek an extension of the interim relief.3 It was the existence of a receiver that led me to the view that a derivative action was unnecessary.4[3] The relevant defendants were described in my judgment as the Thompson interests. One of the issues raised in support of the interim relief application was one of loss of corporate opportunity, founded on a claim that a director of a company (as a fiduciary) ought not to misuse information or opportunities received in that capacity for his or her own benefit.5 I assumed, without deciding the point, that there was a seriously arguable question on the corporate opportunity issue but anti- competitive features of injunctive relief militated against its grant.6[4] Notwithstanding the fact that both parties succeeded in part, cross- applications for increased costs have been made. The trust contends that it too should be entitled to costs, with an uplift.[5] I am not satisfied that this is a case that would require an uplift in costs, either way. Further, neither party would be disentitled to costs on the applications on which they proceeded. On the evidence before me, the applications did not warrant the appearance of senior counsel and could have been conducted appropriately and competently by his junior. I would not have granted a certificate for second counsel.1 Burton v Thompson [2012] NZHC 1610. The judgment was reissued on 9 July 2012.2 Ibid, at para [76].3 Ibid, at para [72].4 Ibid, at paras [45]–[52].5 For example, see G E Smith Ltd v Smith [1952] NZLR 470 (SC) and Canadian Aero Service Ltdv O'Malley (1973) 40 DLR (3rd) 371 (SCC).6 Ibid, at para [68].[6] In those circumstances, I have decided to make no order as to costs. Costs shall lie where they fall._______________________________P R Heath JDelivered at 2.15pm on 15 October 2012Solicitors:Hornabrook MacDonald, PO Box 91845, AucklandMorgan Coakle, PO Box 114, AucklandCounsel:J K Goodall, PO Box 1778, Shortland Street, AucklandJ G Miles QC, PO Box 4338, Shortland Street, Auckland