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High Court of New Zealand Decisions |
Last Updated: 14 May 2013
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2009-404-000725 [2013] NZHC 851
BETWEEN DOUGALL LOVE, PATRICIA LOVE AND TRUSTS LIMITED
Plaintiffs
AND AUBURN APARTMENTS LIMITED (IN RECEIVERSHIP AND LIQUIDATION) Defendant
Hearing: 5 December 2012
Appearances: E St John for Plaintiffs
J C Caird and B J Steed for Receivers
Judgment: 23 April 2013
JUDGMENT OF ELLIS J
This judgment was delivered by Justice Ellis on 23 April 2013 at 4:30 pm
pursuant to R 11.5 of the High Court Rules
Registrar / Deputy Registrar
Date...............................
Solicitors: Simon Palmer, P O Box 74062, Auckland
Fax: (09) 630-6322
Simpson Grierson, Private Bag 92518, Auckland
Fax: (09) 307-0331 – J C Caird / B Steed – Email: james.caird@simpsongrierson.com ben.steed@simpsongrierson.com
Counsel: E St John, P O Box 105270, Auckland 1143
Fax: (09) 357-6034 – Email: barrister@estjohn.co.nz
LOVE & OR V AUBURN APARTMENTS LTD (IN RECEIVERSHIP AND LIQUIDATION) HC AK CIV-
2009-404-000725 [23 April 2013]
[1] On 22 February 2012 the Court of Appeal delivered judgment in favour of the Loves in relation to their contractual dispute with Auburn Apartments Ltd (Auburn), overturning my decision in this Court.1 In the concluding paragraph of its decision the Court said:
[45] Auburn is to pay the Loves’ costs for a standard appeal on a band A basis with usual disbursements. Auburn must also pay the Loves’ costs in the High Court, on the 2B basis allowed by Ellis J in her judgment, with disbursements to be fixed by the Registrar of that Court failing agreement.
[2] The difficulty is that Auburn is in receivership and liquidation. The Loves have therefore now sought non-party costs against the receivers personally.
Background
[3] The Loves’ claim was first filed on 4 February 2009. Auburn filed a defence in March 2009. On 26 January 2010 receivers were appointed by Westpac (a secured creditor). Auburn was placed into liquidation on 12 March 2010 and on 30 March
2010 the liquidators confirmed that “in accordance with section 31(2) of the Receivership Act 1993 the liquidators consent to the receivers acting as agents of the company effective from the date of liquidation”. In any event, the receivers continued to defend the Loves’ claim.
[4] On 19 April 2010 Mr Love wrote a lengthy letter to the receivers in which he said:
We suggest that the risk of you not succeeding in court is far greater than you have acknowledged to date.
We suggest our assertion that we will be just another unsecured creditor in the event costs are awarded is nonsense.
It is clear in New Zealand that a receiver can be held personally liable for costs ...
We will be applying to the court for an order that you the receivers will be personally liable for costs.
1 Love v Auburn Apartmenst Ltd (in receviership & and liquidation) [2012] NZCA 34, [2012] ANZ ConvR 12-005; Love v Auburn Apartments Ltd (in receivership & and liquidation) HC Auckland CIV-
2009-404-725, 28 February 2011.
[5] In May 2010 the Loves made an application for security for costs. Although no amount was specified in the application itself it is not disputed that the security sought at the hearing was based on the estimated 2B costs of the day trial, or between approximately $60,000 and $80,000.
[6] Associate Judge Doogue’s decision on the application for security was delivered on 16 June 2010.2 Although the application had been made in formal terms against Auburn itself, Associate Judge Doogue recorded at [38] of his judgment that:
... Through its counsel, Mr St John, the plaintiff also submits that the defendants in this case are essentially receivers (although acting with the authority of the liquidators in bringing their counter-claim) and the Court is not prevented from ordering security against receivers. The defendant opposes the making of such an order.
[7] Because of Mr St John’s submission, Associate Judge Doogue considered the
Court’s power to order security against receivers at some length. He said:
[40] In my judgment, Mr St John’s submissions are correct ... when he says that there is no reluctance to order security for costs against receivers. That is because of the difference in the two roles. Generally, the beneficiaries of litigation brought by liquidators are the unsecured creditors.
[41] I accept that it would be wrong in principle for an opponent in litigation to, effectively, obtain security for its costs in the litigation as a priority over the other unsecured creditors.
[42] It is not necessary to refer to the various authorities that Mr St John cited. Reference need only be made to one of them. In Seabird Corporation Limited v National Securities Exchange Guarantee Corporation Limited [1989] 7 ACLC 1,263, Needham AJ stated, at 1,266:
“It would be unjust to allow a secured creditor an opportunity to litigate free of any risk that, should it fail, it would not be under an obligation to pay the costs of the defendant. The receiver and manager’s duty, should he succeed in obtaining judgment, would be to apply the proceeds of the litigation towards repayment of the secured debt. In that sense, the proceedings are taken for the benefit of the secured creditor, and there is every reason, in my opinion, why the defendant should have the benefit of an order giving it some security for its costs.”
[43] In the present case the parties behind the litigation are the receivers who are acting as agents for the liquidators. The receivers have been
2 Love v Auburn Apartments Ltd, HC Auckland CIV-2009-404-725, 16 June 2010.
appointed by Westpac New Zealand Ltd. Their interest in the matter is in recovering property which is subject to the Bank’s security. Mr Judd submitted that the receivers have obligations to the general body of creditors, such as to account for any surplus. While that is no doubt true, it does not mean that the receivers are acting in the same capacity as the liquidator. In my view, the essence of the receivers’ position is that they are acting as agents of, or are entitled to an indemnity from, the Bank as a secured creditor. The arrangement is a commercial one. T here are no counter- balancing considerations of public interest which would justify the Court in sheltering the receivers from an order for security for costs.
[8] The learned Associate Judge concluded that:
[49] ...
(b) the defendant will not be able to pay costs if an order is made against it;
(c) the usual reluctance to direct that a liquidator pay security for costs is not a factor which is present in this case where the litigation is essentially being driven by the secured creditor.
[50] In those circumstances there is jurisdiction to make an order for security for costs and in my view it would be a correct exercise of the discretion under rule 5.45 to so order.
[51] The duration of the trial has been estimated by the plaintiff at five days and by the defendant at approximately the same length. Viewing matters in the round, I would have thought that a provision of security for costs at $25,000 would be adequate and that is what I propose to order the defendant to pay. Security is to be staged, with half to be paid by the end of July 2010, and the balance five working days prior to the commencement of the trial.
[9] On 5 July 2010 counsel for Auburn/the receivers advised Mr St John that:
... the receivers will be meeting the security for costs order later this month and if necessary will pursue this matter to trial.
[10] The security was subsequently paid.
[11] The three day trial took place in October 2010 and my judgment was delivered on 28 February 2011. As I have said, that was overturned by the Court of Appeal on 22 February last year.
[12] It seems that following delivery of the Court of Appeal’s judgment, between
March and July 2012, there was an exchange of correspondence between the Loves’
legal representatives and the receivers. I set out the relevant aspects of that correspondence below.
[13] On 14 March 2012 the receivers emailed the Loves’ solicitor advising that they would not be seeking leave to appeal the Court of Appeal’s decision and saying:
Accordingly we request your confirmation that release of:-
The $25,000 security for costs paid into the High Court
The NZ Home Bond funds ...
The security for costs paid by your
clients to the Court of Appeal
will constitute full and final settlement of all claims between your clients and the Company, including all issues as to costs in the Court of Appeal and the High Court.
Upon receipt of such confirmation the receivers will forward to you written instructions authorising the High Court and Court of Appeal to release the security for costs funds to your clients.
[14] The Loves’ solicitor replied substantively by email to the receivers’ counsel
on 19 March. He said:
I am sure you would agree that the Receivers have no right to insist upon compliance with the judgment of the Court of Appeal on terms.
Accordingly ... please:
confirm to the High Court that the security may be released; ...
Costs will be dealt with as a separate issue in the normal way – and I will leave that up to you and Eugene [St John] to sort out. The issue of costs has no bearing on the matters referred to above.
[15] The receivers responded on the following day:
In relation to costs, we paid security for costs of $25,000 to the High Court and your client would have paid security for costs to the Court of Appeal. As stated in our previous email, we would agree to both of these payments being released to your client in full and final settlement of all remaining issues relating to this litigation, including costs. That will bring this entire matter to an end without the need for your client to incur the further costs of having formal orders sealed.
[16] On 27 March the receivers’ counsel advised the Court of Appeal that his
clients did not oppose the release of the Court of Appeal security to the Loves. On
28 March he advised the Registry of the High Court that:
The parties have not yet reached agreement regarding what should happen to the money paid into the High Court by the defendant as security for costs.
[17] On 2 April the receivers wrote again to the Loves’ solicitor, Mr Palmer, seeking a response to the 20 March letter and repeating their “full and final settlement” offer.
[18] It appears no response was forthcoming and the receivers wrote a further letter on 29 May. This letter said:
We have already confirmed that the receivers agree to the release of the High Court payments to your client in full and final settlement of all remaining issues in the litigation, including costs.
In the absence of a response from you to the contrary, we consider that all issues between your clients and the receivers are concluded.
We therefore take this opportunity, as a matter of courtesy to advise that the receivers intend terminating the receivership on or about 22 June 2012.
[19] On 4 July 2012 Mr Palmer responded saying that the Loves had instructed him to apply to the High Court for an order that costs be awarded against the receivers. He said:
Quite separately, we still do not understand why the receivers continue to deny that the security for costs can [sic] be paid other than with a condition imposed upon its release.
[20] On 9 July 2012 the receivers responded, querying the timing of Mr Palmer’s response and advising that the receivership had been terminated on 2 July. He also said that the receivers had not received any request for the release of the High Court security for costs to the Loves and advised that Simpson Grierson were authorised to accept service of the costs’ application.
The Loves’ application and the receivers’ opposition
[21] The application for non-party costs against the receivers was filed on
6 September 2012. The application was made on the following grounds:
...
5. They controlled the litigation.
7. They were the only parties who would benefit from the litigation.
There was no prospect of funds being paid to the second secured creditor or the liquidator as representing preferential and unsecured
creditors.
9. It is just that they pay the costs of the proceeding to the plaintiffs.
10. They were put on notice that costs would be sought against them.
[22] There is no dispute as to the matters referred to in 3, 6, 7 and 8 above.
[23] Mr St John has estimated that 2B costs in this case would amount to approximately $60,000.
[24] The application was opposed on the following grounds:
a. At all times the receivers were acting as agents of the defendant;
c. It is the receivers’ duty to continue with the proceeding because they
believed that it was in the best interests of their appointer;
d. There was no bad faith or impropriety by the receivers in deciding to
continue with the defendant’s defence and counterclaim;
e. The costs incurred by the plaintiffs would have been incurred
without the receivers’ involvement;
f. The receivers had no direct interest in the proceeding;
g. The defendant has paid $25,000 security for costs in this proceeding;
k. It is not just that the receivers be ordered to pay the plaintiffs’ costs.
[25] Mr St John did not seek to contest the propositions contained in (b), (c) and
(d) above.
Relevant law
[26] The Court’s jurisdiction to award costs against non-parties is governed by
Part 14 of the High Court Rules
[27] The leading New Zealand case on the exercise of this jurisdiction is Dymocks Franchise Systems (NSW) Pty v Todd (No 2).3 There, the Privy Council held that a debenture holder of the unsuccessful party was liable for costs as a non-party because it had funded part of the litigation and stood to benefit financially in the event of success. In that decision Lord Brown of Eaton-under-Heywood identified a number of factors relevant to the exercise of the Court’s discretion to award costs against non-parties.4
[28] First, he said that costs orders against non-parties were to be regarded as
“exceptional”; exceptional in this context meant no more than outside the ordinary run of cases where parties pursued or defended claims for their own benefit and at
3 Dymocks Franchise Systems (NSW) Pty v Todd (No 2) [2005] 1 NZLR 145 (PC).
4 At [25].
their own expense. The ultimate question in any such “exceptional” case was
whether in all the circumstances it was just to make the order.
[29] Secondly, in general terms, the discretion would not be exercised against those with no personal interest in the litigation, who do not stand to benefit from it, are not funding it as a matter of business, and in no way seek to control its course.5
[30] Thirdly, where the non-party not merely funds the proceedings but substantially also controls or will benefit from them, justice will ordinarily require that, if the proceedings fail, he will pay the successful party’s costs. In such cases, Lord Brown said, the non-party is not so much facilitating access to justice by the party funded as himself gaining access to justice for his own purposes and is thus “the real party” to the litigation.
[31] Fourthly, Lord Brown said:6
... Perhaps the most difficult cases are those in which non-parties fund receivers or liquidators (or, indeed, financially insecure companies generally) in litigation designed to advance the funder's own financial interests. Since this particular difficulty may be thought to lie at the heart of the present case, it would be helpful to examine it in the light of a number of statements taken from the authorities ...
In the light of these authorities ... their Lordships would hold that, generally speaking, where a non-party promotes and funds proceedings by an insolvent company solely or substantially for his own financial benefit, he should be liable for the costs if his claim or defence or appeal fails. As explained in the cases, however, that is not to say that orders will invariably be made in such cases, particularly, say, where the non-party is himself a director or liquidator who can realistically be regarded as acting rather in the interests of the company (and more especially its shareholders and creditors) than in his own interests.
[citations omitted]
[32] One of the authorities reviewed and approved by the Privy Council was a decision of this Court in Carborundum Abrasives Ltd v Bank of New Zealand (No
5 Citing Hamilton v Al Fayed (No 2) [2002] EWCA Civ 665 at [40], [2002] 3 All ER 641 at
6 Dymocks, above n 3 at [25](4) - [29].
award non-party costs against directors) Tompkins J had said:8
In his judgment, the Master said that without in any way attempting to be exhaustive, it was his view that for an applicant to succeed to obtain an order for costs against a non-party the applicant must establish some form of impropriety, fraud or bad faith on the part of the non-party. With respect to the Master, I do not accept this limitation. Certainly, if a non-party who has been involved in or connected with the prosecution or defence of proceedings through an insolvent company has acted with impropriety or with mala fides, that could be a persuasive reason for the Court exercising its discretion to order costs against such a non-party. But a non-party could become liable for costs where he has acted without impropriety or mala fides. For example, in Forest, proceedings were commenced by a company that, on the same day, executed a mortgage in favour of certain banks who also on that day appointed a receiver. Ultimately, the proceedings were discontinued. The Court by a majority held that the receivers should be liable in costs. It was not suggested that the receivers had acted improperly or in bad faith. Ryan J considered that it was proper that the costs should be ordered to be paid by the receivers when it was clearly established that they were incurred by the receivers primarily for the benefit of a non-party, the banks and with their support. Indeed, he went so far as to say that it would have been “monstrously unfair” to confine the applicants to orders against impecunious companies.
Where proceedings are initiated by and controlled by a person who, although not a party to the proceedings, has a direct personal financial interest in their result, such as a receiver or manager appointed by a secured creditor, a substantial unsecured creditor or a substantial shareholder, it would rarely be just for such a person pursuing his own interests, to be able to do so with no risk to himself should the proceedings fail or be discontinued. That will be so whether or not the person is acting improperly or fraudulently.
(emphasis added)
[33] Another decision reviewed and approved in Dymocks was that of the High Court of Australia in Knight v F P Special Assets Ltd, which was specifically concerned with an award of costs against non-party receivers.9 By a 4/1 majority, the High Court dismissed the receivers’ appeal. The majority found that there was jurisdiction to order non-party costs in such a case when:10
(a) The relevant party is insolvent;
(b) The non-party has controlled the proceedings; and
7 Carborundum Abrasives Ltd v Bank of New Zealand (No 2) [1992] 3 NZLR 757 (HC).
8 At 764 – 765.
9 Knight v F P Special Assets Ltd [1992] HCA 28, (1992) 174 CLR 178 (HCA).
10 At [34]. 193.
litigation.
[34] Of further relevance to the present case is the statement in the joint judgment of Mason CJ and Deane J that:11
The appellants contend that the availability of an order for security for costs where the plaintiff is suing on behalf or for the benefit of another is a strong reason for denying the existence of a jurisdiction to order costs against a non-party. Indeed, it has been said that the practice of making such an order for security for costs and of staying the proceedings until it is given is the appropriate remedy ... No doubt it is an appropriate remedy in many cases but there are limitations attaching to the availability of security for costs. These limitations are such that security for costs is not a remedy in all cases in which justice calls for an order for the award of costs against a non-party. Security cannot be ordered against a defendant or a plaintiff who is an individual and who resides in the jurisdiction. The amount awarded as security is no more than an estimate of the future costs and it is not reasonable to expect a defendant to make further applications to the court at every stage when it appears that costs are escalating so as to render the amount of security previously awarded insufficient. And the availability of the remedy is scarcely a reason for denying the existence of jurisdiction to make an order for costs against the “real party” at the end of the trial of an action. The availability of an order for security for costs at an earlier stage of the litigation would, in many situations, be a strong argument for refusing to exercise a discretion to order costs against a non-party, but discretion must be distinguished from jurisdiction.
(citations omitted)
[35] The part that the availability of security for costs has to play in such cases has also more recently been considered by the English Court of Appeal in Dolphin Quays Development Ltd v Mills.12 That case also involved an application for non- party costs against receivers. After considering the relevant cases, including Knight and Carborundum, the Court said at [51]:
[51] The effect of these authorities is that there is a recognition that injustice might be caused where litigation is conducted by a receiver on behalf of an insolvent company for the benefit of secured creditors, and that in appropriate cases a non-party costs order against a receiver or against the secured creditor may be made, especially where the non-party is the ‘real party’. A costs order against receivers will be more readily made where the company is in liquidation and the receiver's agency has terminated, or where the successful party has not been able to obtain security for costs or adequate security for costs.
11 At [28]. 190-191.
12 Dolphin Quays Development Ltd v Mills [2008] 4 All ER 58 (CA).
(emphasis added)
[36] The issue of the availability and/or adequacy of security is then discussed at some length. And at [61] and [62] the Court said:
[61] In Petromec Inc v Petroleo Brasileiro SA Petrobras [2006] EWCA Civ 1038, [2006] All ER (D) 260 (Jul), 150 Sol Jo LB 984 the fact that (inadequate) security had been obtained did not prevent an order being made against an individual who had funded, controlled, and stood to benefit from, the proceedings. One of the grounds of appeal was that in the exercise of his discretion in ordering a third party to pay costs the judge (Moore-Bick LJ, as he had become) had failed to take into account the fact that the defendant Petrobras had been entitled to and did obtain some security for its costs. Longmore LJ said (at [14]):
‘... But the fact that in the course of the proceedings a judge (Andrew Smith J in this case) ordered security which, in the event, has turned out to be inadequate should not be any reason for declining to exercise jurisdiction in an otherwise appropriate case. As [Moore-Bick LJ] said ... “it is no more unjust to make the backers of an insolvent company liable for the costs ... than it is to require them to provide security for costs on its behalf”.’
[62] These decisions show that the availability of security is an important factor in the exercise of the discretion, and that the discretion may be exercised more readily in favour of the successful litigant if security was not available at all (as in 20th Century Television and Appliances Ltd v Midnapore Property Investments Ltd (1991) 86 DLR (4th) 628, where the costs were incurred on an ex parte application), or where adequate security is not available.
[37] I was also referred to a number of New Zealand decisions where costs orders have been made against receivers.13 I note in particular that in Poh v Cousins & Associates Associate Judge Osborne referred to Knight in support of the proposition that the availability of security for costs against the company which is a party was a powerful reason against an award of non-party costs against receivers.14 In that case, however, the Associate Judge did make a costs award against the receivers personally on the bases that the appointor stood to benefit financially from the
litigation and the receivers had control over bringing and resolving the proceeding.
13 Alwest Joinery Ltd (in receivership) v Company B HC Auckland M783/96, 3 October 1996; Re
Brumark Investments (in receivership) [2000] 1 NZLR 223 (CA); Cutting v Gould HC Auckland CIV-
2004-404-3957, 2 June 2010.
14 Poh v Cousins & Associates HC Christchurch CIV-2010-409-2654, 4 February 2011 at [42].
[38] The receivers in the present case relied primarily, however, on the decision of a divisional Court of Appeal in Capital + Merchant Finance Ltd v Simpson.15 In that case the Court declined to award costs against receivers because:16
(a) They had become involved after the proceeding had been taken (the proceeding being an appeal) which meant that they did not have the usual advance notice of their potential liability for costs;
(b) The arguments on appeal were finely balanced (which distinguished the case from Poh); and
(c) The litigation was not pursued for the receivers’ personal financial
benefit.
[39] Mr Caird also submitted that the fact that security was available (and, indeed, obtained) militated against the granting of the Loves’ application.
Discussion
[40] I have formed the view that the Loves’ application should be granted, for the
reasons that follow.
[41] First, I agree with Mr St John that the present case is readily distinguishable from Simpson because the receivers in this case were on clear notice from the outset of the receivership as to their potential liability and had every opportunity to withdraw the defence and counterclaim before trial.
[42] Secondly, I also agree that the Court of Appeal’s reliance in that case on whether or not the receiver obtained a personal benefit from the litigation is, with respect, curious. As Mr St John said, it will always be the case that a receiver will not enjoy any fruits of the litigation (beyond the payment of their fees); they belong to the secured creditor. If personal benefit was a determining factor, then it is
difficult to see how receivers could ever be liable for costs. And the passages I have
15 Capital + Merchant Finance Ltd v Simpson (in receivership and liquidation) [2011] NZCA 657.
16 Ibid at [14] – [19].
quoted above from both Knight and Carborundum make it clear that the important factor is not whether the receivers took the benefit personally, but whether the receiver is appointed by a party that stood to benefit
[43] And thirdly, I also agree with Mr St John that, while it is plainly correct that the failure of a party to apply for security for costs when he had the opportunity to do so will count against him, that is not the position here. Here, the Loves succeeded in obtaining security (effectively from the receivers) but the amount awarded has proved to be inadequate. The receivers’ contention that it was open to the plaintiffs to seek further security for costs in the face of Doogue AJ’s award is, in my view, specious in the circumstances of this case. As Lawrence Collins LJ said in Dolphin Quays:
[87] Where the application for security for costs is made on the basis that the claimant is a company which will be unable to pay the defendant's costs
... and where the receiver is in a position to provide security from
realisations or from funds provided by the secured creditor, I can see no reason why the court should not take fully into account the need to ensure that the defendant is adequately protected from incurring irrecoverable costs if the action fails. The amount which the court orders by way of security is, of course, within the discretion of the court. But in such a case the court should be robust in its assessment of the amount of the security, amounting in appropriate cases to the full amount of the estimated standard costs. To order adequate security in this type of case could not possibly run the risk of depriving the claimant company of its right to access to the courts.
[44] It seems unlikely that this dicta from Dolphin Quays was drawn to the attention of the learned Associate Judge in the present case. In the result, the amount awarded by him has proved insufficient, through no fault of the Loves.
[45] It is not (or, in light of the correspondence, could not be) disputed that the receivers in the present cases did indeed control and direct the litigation. In my view their decision to persist with it was made largely (if not wholly) for the benefit of the secured creditor who appointed them and with a clear appreciation that the Loves might pursue them personally for costs, if successful.
[46] Similarly, and notwithstanding what might be seen as somewhat tardy responses received from the Loves’ legal advisers during 2012, I consider that the receivers knew that there was no agreement from the Loves to their “full and final
settlement” proposal when they chose to terminate the receivership. In those circumstances, I place little weight on the (somewhat equivocal) contention that the receivers “may” be prejudiced if a non-party costs award is made.
[47] And lastly, even if it can be said that the Court of Appeal has “already determined the issue of costs in this Court”, that does not, in my view, preclude the Loves from making a fresh and separate application against a non-party. That seems clear from the circumstances of Dymocks and, indeed, from the circumstances of
Simpson.17
Result
[48] Accordingly, and for the reasons I have given, I consider that it is just that the
receivers be ordered to pay the plaintiffs’ costs, on a 2B basis.
Rebecca Ellis J
17 Although the Court of Appeal declined to make a non-party costs order against the receivers in that case, the Court did not say that the fact that a costs award had already been made against the impecunious party precluded such an application from being brought.
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