TGR HELICORP LIMITED (IN RECEIVERSHIP) AND ANOR V ROGERS AND ROGERS HC AK CIV 2008-404-004109 [2009] NZHC 996 (11 August 2009)

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
                                                                           CIV
2008-404-004109



               BETWEEN                           TGR HELICORP LIMITED (IN
                                   
             RECEIVERSHIP)
                                                 First Plaintiff

               AND                 
             BASTIA INVESTMENTS LIMITED,
                                                 GEORGE PETER GLAISTER AND
            
                                    SONIA LEE GLAISTER, PETER
                                                 MARSDEN BARRY, ANDREA
CAROL
                                                 BARRY AND DAVID MARSDEN
                                                 BARRY
                                                 Second Plaintiffs

               AND                               GLENDA FRANCES
ROGERS AND
                                                 TREVOR VICEMAR ROGERS
                                              
  Defendants


Hearing:       (On the papers)

Appearances: R Latton for the First and Second Plaintiffs
             P Webb for
the Defendants
             G Caro for the Official Assignee

Judgment:      11 August 2009 at 3:30 p.m.


                     
   JUDGMENT OF WOODHOUSE J
                             (Costs and Directions)


            This judgment was delivered by me on
11 August 2009 at 3:30 p.m.
                     pursuant to r 11.5 of the High Court Rules 1985.

                             
  Registrar/Deputy Registrar

                              ..........................................




Solicitors:
Mr R Latton,
LeeSalmonLong, Solicitors, Auckland
Mr P Webb, Barrister, Manukau
Mr G Caro, Ministry of Economic Development, Auckland


TGR HELICORP
LIMITED (IN RECEIVERSHIP) AND ANOR V ROGERS AND ROGERS HC AK CIV
2008-404-004109 11 August 2009

[1]    This judgment deals with
three applications and one notice of opposition of
the first plaintiff, TGR, recorded in two memoranda dated 5 March 2009, and TGR's
application dated 10 June 2009 for committal and other orders.


[2]    Mr and Mrs Rogers were adjudicated bankrupt in January 2009.
Leave was
granted to continue with this proceeding on terms recorded in my minute of 11
March 2009. Notice of the applications of
TGR has been given to the Official
Assignee as well as to Mr and Mrs Rogers.


[3]    On 28 April 2009 Associate Judge Faire directed
that any opposition to
TGR's applications were to be filed by 9 June 2009. No notices of opposition have
been filed for or on behalf
of Mr and Mrs Rogers or the Official Assignee. A
memorandum has been filed for the Official Assignee in relation to storage costs
which I note under that heading.


Application for leave to disclose information obtained on execution of the
search (Anton Piller)
orders


[4]    TGR is in receivership. Under s 28 of the Receiverships Act 1993 a receiver
of a company who considers that the company,
or a director of it, has committed
certain offences, must report that belief to the Registrar of Companies. The receivers
of TGR
consider that Mr and Mrs Rogers, as directors of TGR, have committed
offences specified in s 28.


[5]    Section 28(2) provides
that the receivers will themselves have committed an
offence if they fail to comply with the obligation to report. The receivers
seek leave
of the Court to make the report.


[6]    The reason leave is sought is that the information giving rise to the belief
of
the receivers that offences have been committed was obtained through execution of
the search orders made in August 2008. Information
obtained on execution of the
orders cannot, without leave of the Court, be used for any purpose other than the

present proceedings.
    The receivers and the plaintiffs' solicitors are bound by
undertakings to that effect.


[7]    The duty to report to the Registrar
arises once the receivers consider offences
have been committed. The duty to report is not dependent on any assessment of the
strength of the case against the party whom the receivers
believe has committed an
offence. In those circumstances, as the Court has been advised that the receivers
have formed the necessary
belief, with reasons for that belief provided, it would be
appropriate to grant leave to make the report unless some special circumstance
indicates the contrary. There is no special circumstance raised for Mr and Mrs
Rogers. There is no opposition from them.


[8]  
 Accordingly, leave is granted to the receivers of TGR to report to the
Registrar of Companies that the receivers consider that offences
specified in s 28 of
the Receiverships Act 1993 have been committed by Mr and Mrs Rogers.


[9]    The fact that leave has been granted
for this purpose is not to be taken as an
indication that I have formed any view as to whether offences have in fact been
committed.
It is not necessary for me to consider that issue. That is a matter for the
Registrar of Companies.


Costs on the defendants' application
to discharge the search orders


[10]   TGR succeeded in its opposition to the application by Mr and Mrs Rogers for
the reasons set
out in my judgment of 19 December 2008. The plaintiffs seek costs
according to scale on a 2C basis.


[11]   I am satisfied that
band C allowance is appropriate.          The only material
difference between band B and band C relates to the time involved for
completion of
a notice of opposition and affidavits ­ two days for band C as opposed to 0.6 for
band B. This is amply justified in
the circumstances of this case.


[12]   The defendants are to pay the plaintiffs' costs in a sum of $8,320 plus
disbursements of
$40.

Storage and other costs


[13]   The search orders were made subject to an undertaking from the receivers as
follows:

  
    To pay the reasonable costs, charges and expenses of any person (other than
       the Defendants), upon whom the Orders are
served or to whom notice of the
       Orders is given, incurred by him, her or it in complying with the terms of the
       Orders.

[14]   Some of the chattels subject to the search orders are, or were, stored in a
storage unit at Portage Road and in containers.
In a memorandum dated 23 January
2009 Mr and Mrs Rogers sought orders that the plaintiffs pay storage charges said to
have arisen
in relation to the unit and storage or rental of the containers. TGR
opposed this application for reasons set out in detail in one
of the TGR memoranda
of 5 March 2009.


[15]   In a memorandum dated 14 July 2009 counsel for TGR referred to an order
sought by
TGR that the costs in question are not within the scope of the receivers'
undertaking as to damages. A positive order in favour of
TGR is different from
determination of TGR's opposition to the application by Mr and Mrs Rogers. I will
consider the opposition first.


[16]   The application by Mr and Mrs Rogers has not been pursued by them. The
Official Assignee, by memorandum dated 15 July 2009,
advised that there is no
opposition to the order sought by TGR. In relation to the positive application by Mr
and Mrs Rogers, the
Official Assignee did not seek to support the application
originally made by Mr and Mrs Rogers.


[17]   The application by Mr and
Mrs Rogers is dismissed for three reasons. The
first is that neither they nor the Official Assignee have sought to pursue or support
the application. The second is that the undertaking of the receivers of TGR does not
justify making an order that the receivers make
a payment to third parties on an
application by the defendants, Mr and Mrs Rogers. The undertaking expressly
excludes costs of the
defendants and it is not for them to make applications for third
parties. Thirdly, on the face of it, the costs in respect of which
Mr and Mrs Rogers

sought orders are costs for which they were contractually liable. The undertaking
does not extend to liabilities
of that nature.


[18]     That disposes of the application by Mr and Mrs Rogers. There is also TGR's
"application", referred to as such in the TGR memorandum of 14
July 2009.
However, there is no formal application before the Court.


[19]     It is not appropriate to make any positive order
in favour of TGR which may
affect third parties. If an issue arises between TGR or the receivers and any third
party claiming payment
for storage costs, that will need to be dealt with on a formal
application by the appropriate party and with an opportunity for the
other party to be
heard.


Plaintiffs' application for committal orders


[20]     By application dated 10 June 2009 the plaintiffs
applied for orders that the
defendants be committed for contempt of Court and other orders. There does not
appear to be any notice
of opposition to these applications.


[21]     In respect of these applications I make the following directions:


         a) 
   If the defendants intend to oppose the application a notice of
                opposition and any affidavits in support of that
opposition are to be
                filed and served by 28 August 2009.


         b)     On or before 4 September, for the case
management conference
                referred to in c), the parties are to file memoranda dealing with the
                following:


                i)      The issues required to be dealt with in respect of the plaintiffs'
                        application
for committal and other orders;


                ii)     The party's proposals for timetable directions.

       c)     There will
be a telephone case management conference before me at
              9:00 a.m. on 11 September 2009 to discuss further steps in relation
to
              this application.


Case assignment


[22]   This case is assigned to me in respect of all further steps in the
proceeding.




__________________________________
Peter Woodhouse J