Jollands v Boss Systems Limited HC Auckland CIV 2009-404-8146 [2011] NZHC 308 (11 April 2011)

Last Updated: 31 May 2011

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CIV 2009-404-8146}

UNDER the Companies Act 1993

IN THE MATTER OF Aden Electrical Limited (in liquidation) BETWEEN PETER REGINALD JOLLANDS AND

ROBIN TRISPIN JOLIFFE Plaintiffs

AND BOSS SYSTEMS LIMITED Defendant

Hearing: 11 April 2011

Counsel: JS Cooper for plaintiffs

AG Rowe for defendant

Judgment: 11 April 2011 at 10:20 AM

_{(ORAL) JUDGMENT OF FAIRE J}

Solicitors: Bell Gully, PO Box 4199, Auckland 1140

Wells & Co, PO Bo 28 390, Auckland

JOLLANDS AND JOLIFFE V BOSS SYSTEMS LIMITED HC AK CIV 2009-404-8146 11 April 2011

[1] There are two applications made by the liquidators against the defendant seeking to set aside transactions.

[2] The applications are made in reliance on the Companies Act 1993, ss 292,

294 and 295.

[3] No notices of opposition have been filed to either application.

[4] A fixture was set today by Woolford J in a minute issued on 7 February 2011. Directions were made at that time to ensure the readiness of this file for today’s fixture.

[5] I called a telephone conference because it was apparent that no notice of opposition had been filed in respect of the second application. The conference was held on 5 April 2011 and resulted in the following orders:

a. notices of opposition to both applications, if they are in fact to be opposed, shall be filed and served no later than 5pm today 5 April

2011;

b. if notices of opposition to both applications or even to just one application are so filed, the liquidators shall file and serve by 5pm on 6 April 2011 submissions in support of any opposed application, plus copies of all authorities referred to together with a casebook which is indexed and paginated and which contains:

i. the applications;

ii. the notices of opposition;

iii. the affidavits in support, opposition and reply;

iv. in case they are not included in the affidavits, the liquidators’ notice and the response to the liquidators’ notice.

c. in the event that notices of opposition are filed by 5pm on 5 April

2011, the defendant’s submissions in opposition together with

copies of all authorities referred to shall be filed and served by 5pm on 7 April 2011;

d. in variation of rr 19.14 and 9.74 in the event that a party desires to cross-examine a deponent in respect of an affidavit filed in relation

to either application the appropriate notice shall be filed and served no later than 5pm on Wednesday, 6 April 2011.

As a consequence of the orders made today, I adjourn the fixture set for

10am on 8 April 2011 to 10am on 11 April 2011. In the event that no notices of opposition are filed, it is likely that judgment on a default basis

would be entered at 10am on 11 April 2011.

[6] Mr Rowe advises today that he has no instructions.

[7] Ms Cooper has filed a helpful memorandum which sets out in paragraph 3, draft orders. The draft orders which will appear in this judgment 3(a) to (f) of that memorandum are appropriate.

[8] Ms Cooper raised the question of indemnity or increased costs. In my view, because of the steps that have been taken that time was not wasted, there is no need in fact to make an order for either increased costs or indemnity costs in this case. An appropriate order for costs is that which covers all items that are referred to as appropriate for this proceeding and which are mentioned in Schedule 3 of the High Court Rules. In addition, this case is, of course, a Category 2 case.

[9] The costs which are awarded in this judgment therefore are based on Category 2 and Band B and cover all the items that are appropriate to these applications mentioned in Schedule 3 to the High Court Rules.

[10] Accordingly, I order:

(a) The transaction set out in the Notice to set aside voidable transactions under the Companies Act 199, dated 20 July 2010, being the payment of $37,470.94 by Aden Electrical Ltd (in liquidation) (the “Company”) to the defendant by cheque number 123504, dated

30 July 2009 (the “first principal amount”), is set aside;

(b) The transactions set out in the Notice to set aside voidable transactions under the Companies Act 1993, dated 27 January 2011, being the payment of $20,000 by the Company to the defendant by cheque number 123969 on 29 September 2009 (the “second principal

amount”), and payment of $17,470.94 by the Company to the defendant by cheque number 123970 on 20 October 2009 (the “third principal amount”) is set aside;

(c) The defendant shall pay the plaintiff liquidators $74,941.88, being the sum of the first, second and third principal amounts;

(d) The defendant shall pay the liquidators interest on the first principal amount at 8.4 per cent per annum from 30 July 2009 to 11 April 2011, being $5,353.02 (621 days at $8.62 a day);

(e) The defendant shall pay the liquidators interest on the second principal amount at 8.4 per cent per annum from 29 September 2009 to 11 April 2011, being $2,576.00 (560 days at $4.60 a day);

(f) The defendant shall pay the liquidators interest on the third principal amount at 8.4 per cent per annum from 20 October 2009 to 11 April

_{2011, being $2,166.78 (539 days at $4.02 per day).}

Costs

[11] The defendant shall pay the plaintiffs’ costs which I calculate based on

Category 2 Band B and allowing for today’s attendance at $15,322.00 plus disbursements of $927.67.

JA Faire J