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Haines v Memelink [2021] NZHC 2333 (7 September 2021)
Last Updated: 27 July 2022
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE
WHANGANUI-A-TARA ROHE
|
CIV-2021-485-28[2021]
NZHC 2333
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UNDER
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the Insolvency Act 2006
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IN THE MATTER
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of an application for an order pursuant to s 17 of the said Act setting
aside a bankruptcy notice
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BETWEEN
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QUENTIN STOBART HAINES
Judgment Debtor
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AND
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HARRY MEMELINK and
CISCA FORSTER in their capacities as the trustees of Link Trust (No.
1)
Judgment Creditors
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Hearing:
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On the papers
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Appearances:
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J D Dallas for first judgment debtor D Livingston for judgment
creditors
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Judgment:
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7 September 2021
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JUDGMENT OF ASSOCIATE JUDGE JOHNSTON
[Costs]
- [1] In my
judgment dated 29 June 2021 I declined the judgment debtor’s application
for an order setting aside a bankruptcy notice
served on him by the judgment
creditors, the trustees of the Link Trust (No. 1). I reserved costs, indicating
that my preliminary
view was that costs should follow the event. Counsel have
been unable to resolve costs and I now have memoranda from Mr Livingston
for the
trustees and Mr Dallas for the judgment debtor. The trustees seek costs on a 2B
basis which Mr Livingston has calculated
at $8,126, together with disbursements
of $110 making a total of $8,236.
HAINES v MEMELINK [2021] NZHC 2333 [7 September 2021]
- [2] Mr Dallas
accepts that the rules require costs in proceedings to be dealt with at the
conclusion of the same, that the trustees
were successful in the proceeding, the
appropriateness of 2B costs in this case and Mr Livingston’s calculation
of costs and
disbursements.
- [3] However, the
judgment debtor has appealed from my decision on the basis that I failed to take
into account a judgment debt owed
by the trustees to the judgment debtor which
Mr Dallas submits makes the trustees net debtors of the judgment
debtor.
- [4] The
difficulty is that that is a matter of dispute, and further complicated by a
recent summary judgment on liability in favour
of the trustees against the
judgment debtor.
- [5] Obviously,
it would not be appropriate for this Court, dealing with a costs application, to
seek to resolve the dispute between
the parties as to whether or not the
judgment debt owed by the trustees to the judgment debtor, or the more recent
summary judgment
as to liability, materially alter the position.
- [6] The proper
course is for this Court to fix costs so that these too are before the Court of
Appeal, but stay execution of the costs
order. I fix costs and disbursements at
the agreed figure of $8,236 and make an order staying execution of that costs
order pending
the conclusion of the appeal or further order of this
Court.
Associate Judge Johnston
Solicitors:
J D Dallas, Wellington for judgment debtor
Livingston & Livingston, Wellington for judgment creditors
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URL: http://www.nzlii.org/nz/cases/NZHC/2021/2333.html