REYNOLDS & ORS v FINNIGAN & ORS [2020] NZHC 3170

REYNOLDS & ORS v FINNIGAN & ORS [2020] NZHC 3170

The judge found Red 9 had raised arguable errors of law of wider significance concerning the treatment of liquidators' undertakings under r 5.45 HCR and that the issues warranted leave to appeal because they were discrete and delay would be minimal; on the security application the judge concluded TLLL was successful...

Source-derived case information.

Citation
[2020] NZHC 3170
Parties
First Plaintiff: Grant Bruce Reynolds, as liquidator for The Learning Ladder Limited (in liquidation); Second Plaintiff: Joanne Lee Young; Third Plaintiff: The Learning Ladder Limited (in liquidation); First Defendant: Peri Micaele Finnigan and Boris van Delden; Second Defendant: Red 9 Limited; Third Defendant: The Learning Ladder (2018) Limited; Fourth Defendant: Peat Johnson Murray Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
2 December 2020
Procedural Posture
Civil Security for Costs and Application for Leave to Appeal / Interlocutory (application for Security for Costs) and Application for Leave to Appeal Granted to Court of Appeal
Outcome
Leave to appeal to the Court of Appeal granted; costs orders made and to lie in court pending the appeal
Legal Topics
Security for Costs, Undertakings by Liquidators, Leave to Appeal, Costs Orders
Civil Procedure Insolvency Law Appeals Costs Security for Costs Undertakings by Liquidators Leave to Appeal Costs Orders

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Parties

Grant Bruce Reynolds, as liquidator for The Learning Ladder Limited (in liquidation)

First Plaintiff

Joanne Lee Young

Second Plaintiff

The Learning Ladder Limited (in liquidation)

Third Plaintiff

Peri Micaele Finnigan and Boris van Delden

First Defendant

Red 9 Limited

Second Defendant

The Learning Ladder (2018) Limited

Third Defendant

Peat Johnson Murray Limited

Fourth Defendant

Procedural Posture

Civil Security for Costs and Application for Leave to Appeal / Interlocutory (application for Security for Costs) and Application for Leave to Appeal Granted to Court of Appeal

Legal Issues

  1. 1 Whether the judge erred in requiring the applicant to adduce evidence of a real risk that the liquidator would not honour a personal undertaking
  2. 2 Whether a liquidator's personal undertaking can be regarded as satisfactory security equivalent to payment into court under r 5.45 HCR
  3. 3 Whether the judge erred in fixing a sum for security without accounting for post-filing costs

Ratio Decidendi

The judge found Red 9 had raised arguable errors of law of wider significance concerning the treatment of liquidators' undertakings under r 5.45 HCR and that the issues warranted leave to appeal because they were discrete and delay would be minimal; on the security application the judge concluded TLLL was successful on the issue because undertakings in substance were offered and accepted as the alternative ordered, and allocated costs accordingly, with both costs orders to lie in court pending the appeal.

Court Disposition

Leave to appeal to the Court of Appeal granted; costs orders made and to lie in court pending the appeal

Orders

  • Leave to appeal to the Court of Appeal granted to Red 9 Limited
  • Notice of Appeal to be filed and served before Christmas 2020 and Red 9 to seek prompt hearing