BRIDGECORP LIMITED (IN RECEIVERSHIP AND IN LIQUIDATION) V TURNBULL AND ORS HC AK CIV-2008-404-6227 [2009] NZHC 156 (18 February 2009)

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
                                                             CIV-2008-404-6227



               BETWEEN                  BRIDGECORP LIMITED (IN
                                        RECEIVERSHIP AND IN
  
                                     LIQUIDATION)
                                        Plaintiff

               AND         
            SIMON LAWRENCE WOOD
                                        TURNBULL
                                        First Defendant

               AND                      MONICA ANTUNES DE MAGALHAES
                                        Second Defendant

 
             AND                      TWO HOLDINGS LIMITED
                                        Third Defendant

            
  AND                      SLW TURNBULL, M A DE
                                        MAGALHAES AND S V GARELLI
              
                         Fourth Defendants

               AND                      SLW TURNBULL AND M A DE
                    
                   MAGALHAES
                                        Sixth Defendants

               AND                      UND
INVESTMENTS LIMITED
                                        Seventh Defendant

               AND                      DER ROHE HOLDINGS
LIMITED (IN
                                        LIQUIDATION AND IN
                                        RECEIVERSHIP)
   
                                    Eighth Defendant


Hearing:       18 February 2009

Appearances: Ms Mills for plaintiff

Judgment:
     18 February 2009


                  ORAL JUDGMENT OF ASSOCIATE JUDGE


Counsel:
Chapman Tripp, P O Box 2206, Auckland


BRIDGECORP
LIMITED (IN RECEIVERSHIP AND IN LIQUIDATION) V TURNBULL AND ORS HC AK
CIV-2008-404-6227 18 February 2009

[1]     The first defendant
has not been served with the proceedings but the plaintiff
seeks to proceed to judgment against him in any event relying on s 70
of the Trustee
Act 1956. I am satisfied that in terms of that section a diligent search has been made
for the first defendant and
that he is a person who is being served `in the character of
trustee'.


[2]     I grant leave to the plaintiff to proceed against
M A de Magalhaes and S L W
Turnbull notwithstanding that they have been adjudicated bankrupt.                Leave is
granted in
terms of s 76 of the Insolvency Act 2006 on terms that the proceedings are
restricted to the subject matter of the trusts of which
those defendants are trustees (in
effect, the fourth defendant, fifth defendant and sixth defendants).


[3]     The eighth defendant
is a company that is in liquidation and I grant leave
under s 248 of the Companies Act 1993 for the plaintiff to continue this proceeding
against that defendant.


[4]     I record that the plaintiff has discontinued against Mr Garelli, the third-
named 4th and 5th defendant.
There will be no costs ordered on that discontinuance.


[5]     There is satisfactory evidence of service against the defendants
other than the
first defendant. I also accept that it has been satisfactorily established that the
defendants against whom the plaintiff
seeks judgment have no defence.


[6]     I approve the form of order of judgment annexed to the memorandum of
counsel dated 18 February
2009 both as to the parties against whom judgment is to
be entered and the amounts which are set out in paragraph 3 (3.2)(a) and
(b).


[7]     I also make the costs order sought in 3.2(c). I also order that, in addition to
the costs set out in 3.2(c), that
the plaintiff is to be entitled to costs on a 2B basis for
the appearance today and for drawing up and submitting the order for sealing.

_____________
J.P. Doogue
Associate Judge