23 Sept 2022
Because both parties were partially successful—the respondents succeeded in challenging the adequacy of charging orders and undertakings and the applicants succeeded in offering a registered mortgage and some funds—the court concluded it was not consistent with the general costs principle to award costs to either party; therefore costs lie where they fell.
18 Jul 2022
The Court granted a stay of execution pending determination of the appeal conditioned on the applicants providing adequate security within 15 working days: (1) $800,000 paid into Pidgeon Judd trust (if not already paid); (2) a first registered mortgage over 2 Orion St, Papakura in favour of the respondents with a priority amount of $1,000,000 (applicants to bear costs); and (3) a bank bond in favour of the Court for the remaining judgment sums plus interest or alternatively an undertaking from Pokeno West that it will not approve sale of the Munro Rd property; statutory demands were set aside…
30 Jun 2022
The Court found the vehicle was conveyed to SDCIC (through its sole director) not to Mr Wu personally; SDCIC was a creditor of Ezybuilding Group and, by receiving $20,000 and the vehicle within the restricted period when the company was insolvent, received more than it would in liquidation. The transfers were therefore voidable and, as SDCIC did not object to the notice, automatically set aside as against it. The Court exercised its discretion under s295 to order SDCIC to repay $20,000 and to pay an amount fairly representing the benefit received from the vehicle transaction ($25,240). The ap…
29 Sept 2020
The non-party costs order was set aside because respondents did not make a formal application on notice to Mr Bassett-Burr and failed to give him proper service and an opportunity to be heard, such that the court lacked jurisdiction and natural justice was breached.
26 Aug 2020
The Court struck out the mortgagee proceeding as an abuse of process barred by res judicata because the matters and remedies pleaded were the same or should have been raised in the earlier fully litigated Main Judgment; struck out the bankruptcy proceeding because the pleaded malicious prosecution, abuse of process and dishonest assistance causes disclosed no reasonably arguable cause of action (malicious prosecution failed the required element of an ultimately successful prior proceeding and other causes were collateral attacks or res judicata barred); having identified at least two prior pr…
2 Jun 2020
The Court substituted Roy Bassett-Burr as the correct appellant because the appeal concerned the costs order made against him; it declined to strike out the appeal because the grounds, while weak, were not frivolous or vexatious on the material before the Court; it ordered Bassett-Burr to pay the filing fee or apply for waiver and to pay security for costs of $7,060 or apply for dispensation, and it removed Quentin Stobart Haines as a respondent while limiting respondents to the two companies awarded costs.
25 Jul 2014
Liquidation proceedings are a form of debt recovery and therefore fall within the Commissioner's statutory power to recover unpaid tax under s156 TAA; having regard to the Companies Act scheme, including s240, s241 and the priority afforded to tax in Schedule 7, the Commissioner is a 'creditor' for the purposes of s241(2)(c)(iv) and may apply for appointment of a liquidator without first obtaining a separate judgment; accordingly the defendants' strike out and stay applications are dismissed.
10 Oct 2013
The court found G T Rigging Ltd was unable to pay its due debts at the times of payment; the first three payments (16 Feb, 6 Mar, 3 May 2007) were made in the ordinary course and saved by transitional provisions, but the payments of 22 June and 31 July 2007 were made in response to a statutory demand and threats of liquidation, were not in the ordinary course, are voidable under s 292, and Titan failed to establish the defence under s 296(3) because a reasonable person in Titan's position would have suspected insolvency and Titan did not prove a relevant alteration of position; accordingly th…
23 Nov 2012
The shareholders' resolution of 8 May 2008 bound the company and created an equitable variation allowing interest to be charged, but it did not provide for backdated interest so interest runs from the resolution date; mortgagees who retained backdated interest must account to the liquidator under s305; the agreement to mortgage of 22 July 2008 was voidable under s293 and set aside; the term loan contracts could not be set aside in this proceeding for lack of a proper s294 notice; the Cowleys failed to prove the company could pay its due debts on 8 May 2008 and 22 July 2008; further factual de…
10 Sept 2010
A liquidator is entitled to decline consent under s248 and to leave the question to the Court; absent established bad faith or exceptional circumstances the liquidator will not be personally liable for costs for refusing consent. The liquidator's conduct, though somewhat confrontational, did not amount to bad faith; accordingly costs against the liquidator personally are refused, costs between applicants and the liquidator lie where they fall, and a Category 2B costs order is made in favour of the applicants against the company in liquidation (second respondent).