Universal Trucks and Equipment Limited v Reynolds [2012] NZHC 1151 (25 May 2012)

Last Updated: 23 June 2012

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2011-485-1968 [2012] NZHC 1151

UNDER the Personal Properties Securities Act 1999

IN THE MATTER OF Personal Property Security Interest Change

Demand Numbers 10036732 & 10036712

BETWEEN UNIVERSAL TRUCKS AND EQUIPMENT LIMITED Applicant

AND GRANT BRUCE REYNOLDS Respondent

On the papers

Counsel: D G Dewar for the Applicant

B M K Pamatatau for the Respondent

Judgment: 25 May 2012

JUDGMENT OF MALLON J (Costs)

[1] I refer to my judgment delivered on 21 March 2012 in this proceeding. Costs were reserved. The parties have been unable to reach agreement on costs and have made submissions on their respective positions in memoranda filed on 4, 10, 11 and

23 April 2012.

[2] The applicant seeks costs against the liquidator in his personal capacity. For the reasons advanced by Mr Pamatatau in his memorandum of 4 April 2012, this is not an appropriate case to make such an order. Nor are the grounds made out for an uplift on scale costs. Although an offer to settle was made by the applicant, I am not

_{persuaded that the liquidator acted unreasonably in not accepting that offer.}

UNIVERSAL TRUCKS AND EQUIPMENT LIMITED v REYNOLDS HC WN CIV 2011-485-1968 [25 May

2012]

[3] The applicant was, however, in effect the successful party. I say “in effect” because, although the applicant had a valid security interest, the financing statement incorrectly recorded that interest. As the successful party, the applicant is entitled to costs, on a 2B basis, as against the company in liquidation, on whose behalf the liquidator was acting. That there may be no funds in the liquidation to meet that award does not alter the applicant’s entitlement to the order, nor provide a sufficient basis for an award against the liquidator personally.

Mallon J

Solicitors:

Thomas Dewar Sziranyi Letts, Lower Hutt for the Applicant

Whitlock & Co, Auckland for the Respondent