TOTAL PLUMBING AND DRAINAGE LIMITED (IN LIQ) V COOPER, AS LIQUIDATOR OF EMERGE GROUP LIMITED (IN LIQ) HC AK CIV 2006-404-00596

TOTAL PLUMBING AND DRAINAGE LIMITED (IN LIQ) V COOPER, AS LIQUIDATOR OF EMERGE GROUP LIMITED (IN LIQ) HC AK CIV 2006-404-00596 23 November 2006IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2006-404-00596UNDER the Companies Act 1993 and the Companies Act 1993 Liquidation Regulations 1994 IN THE MATTER OF a liquidation of EMERGE GROUP LIMITED (IN LIQUIDATION) BETWEEN TOTAL PLUMBING AND DRAINAGE LIMITED (IN LIQUIDATION) Applicant AND MICHAEL JOSEPH COOPER, AS LIQUIDATOR OF EMERGE GROUP LIMITED (IN LIQUIDATION) Respondent Hearing: 23 November 2006 Appearances: Mr Hucker for applicant No appearance for respondent liquidator Judgment: 23 November 2006ORAL JUDGMENT OF ASSOCIATE JUDGE J P DOOGUESolicitors:Hucker & Associates, P O Box 3843, Shortland Street, Auckland Emerge Group Limited (in liq), P O Box 90-777, Auckland (Mike Cooper) Meltzer Mason Heath, P O Box 6302, Auckland (J P Meltzer)[1] The applicant has filed an application for leave to commence an action by way of an originating application with the object of the originating application being to challenge the liquidator's decision pursuant to s 284 of the Companies Act 1993 to reject the applicant's proof of debt. [2] In detail, the order sought is that the liquidator's decision of 22 September 2006 to reject the proof of debt lodged by the applicant 12 June 2006, be reversed and the liquidator be directed to admit the proof of debt. The applicant also seeks that the respondent pay costs personally on the application. [3] The application has been served. The liquidator wrote to the Court by way of facsimile message on 17 November 2006 saying that he was prepared to allow the applicant to prove as a creditor and saying that he would not be filing a notice of opposition. In his letter, Mr Cooper, the liquidator, said that the quantum of the claim is still in dispute. [4] As he indicated in his letter the respondent has taken no steps on the application. Mr Hucker sought to persuade me that I should now review the liqudator's decision under s 284 of the Companies Act 1993 and direct the liquidator to accept the debt and to direct him to fix the quantum of same at the amount claimed, $82,029.03. [5] I am prepared to give leave to bring the proceeding and to give directions sought in the proceeding that the liquidator is to accept the claim by the applicant. He has in any event indicated that he is prepared to do that. I am not prepared to give any directions to the liquidator concerning quantum. I see it as properly being in his province to assess that aspect of the matter, notwithstanding he has not filed a notice of opposition. I would not be prepared to exercise my discretion to direct him on the matter of quantum. [6] However Mr Hucker has properly pointed out that there have been delays given rise to frustration on the part of the applicant. To accommodate the needs of the applicant my belief is that the best way forward is to reserve leave to theapplicant to apply for further directions on the present application on giving notice to the respondent of what those further directions are. [7] I also notice that the application expressly sought costs personally against the respondent. I consider that an order for costs should be made in the proceedings to this point on a 2B basis together with disbursements to be fixed by the Registrar and I order accordingly. _____________ J.P. Doogue Associate Judge