TOTAL PLUMBING AND DRAINAGE LIMITED (IN LIQUIDATION) V COOPER HC AK CIV 2007-404-003731

TOTAL PLUMBING AND DRAINAGE LIMITED (IN LIQUIDATION) V COOPER HC AK CIV 2007-404- 003731 29 January 2009IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2007-404-003731UNDER the Companies Act 1993 and the Companies Act 1993 Liquidation Regulations 1994 IN THE MATTER OF the 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: 29 January 2009 Counsel: RB Hucker for applicant No appearance for respondent Judgment: 29 January 2009 at 4:25pm(ORAL) JUDGMENT OF ASSOCIATE JUDGE FAIRE [on application for costs]Solicitors: Hucker & Associates, PO Box 3843, Auckland for applicant Bytalus Legal, PO Box 34 868, Birkenhead for respondent[1] This proceeding involved an application by a creditor in the liquidation of Emerge Group Limited (in liquidation) to have set aside a decision of the liquidator not to accept the proof of debt of the applicant in the liquidation. [2] The applicant originally challenged the liquidator's rejection of the proof of debt. A judgment of Associate Judge Doogue was issued in respect of that matter. The judgment directed that the liquidators accept the claim but left the question of quantum to be determined. Costs on a 2B base were ordered. [3] The respondent then purported to value the applicant's claim at zero. A fresh application was filed. On the afternoon before the fixture the respondent consented to the setting aside of the decision and accepted that the proof of debt of the applicant was to be admitted in the quantum claim by the applicant. [4] Mr Hucker, for the applicant, properly submitted that the applicant, in these circumstances, is the successful party and, in terms of r 47 of the High Court Rules, was the party entitled to an order for costs. Mr Hucker filed a memorandum setting out the claim of costs made on the applicant's behalf. The respondent was given the opportunity of answering but elected not to do so. [5] In Mr Hucker's memorandum claims are made in terms of Schedule 3 as follows: a) a claim for commencement, three days in accordance with Item 1, is made. In my view that is a proper claim; b) A claim, in terms of Item 4.17 for appearances at mention hearings at .2 of a day, is also made. In my view that is a proper claim; c) A claim was originally made for an additional allowance for preparation of affidavits in accordance with 7.1. In my view there is duplication here but, in any event, Mr Hucker quite properly withdrew the application following a discussion in chambers;d) A claim in accordance with Item 7.2 is made. Clearly some allowance for the preparation of matters required pursuant to an order under r 251A is called for. What is appropriate here, in my view, is Band A for the step that was taken. That has the effect of making an allowance of 1.5 days. [6] This case clearly was a Category 2 case. What I have set out earlier in this judgment fixes the appropriate banding for the steps taken as required by r 48B. The effect of that exercise is to make an allowance of 4.7 days based on the rate prescribed for in Schedule 2 of $1,600 per day applicable. That indicates that costs in the sum of $7,520 plus disbursements as fixed by the Registrar are justified in this case.Order[7] I order that the respondent pay the sum of $7,520 plus disbursements as fixed by the Registrar. _____________________ JA Faire Associate Judge