MINUTE OF ASSOCIATE JUDGE SKELTON Re: MWLASS Liquidation case.

IN THE HIGH COURT OF NEW ZEALAND
PALMERSTON NORTH REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE PAPAIOEA ROHE
CIV-2024-454-74

UNDER pt 16 of the Companies Act 1993

IN THE MATTER of a proceeding to put
Manawatū-Whanganui LASS Ltd into
liquidation

BETWEEN INLANDSAIRWATER COUNSEL
Plaintiff
AND MANAWATŪ-WHANGANUI LASS
LIMITED
Defendant

Hearing: On the papers
Counsel: D M Barraclough in Person

Minute: 25 February 2026
MINUTE OF ASSOCIATE JUDGE SKELTON
[1] The plaintiff applies by way of without notice interlocutory application dated
17 February 2026 for an order that I recuse myself from this proceeding and, “pending
recusal”, for an “interim injunction…to stay all proceedings to prevent irreparable
harm”, and “reassignment to another judicial officer is requested”.
[2] The grounds for recusal are “apparent bias, procedural irregularities, and
material omissions” in my judgment dated 28 February 2025, in which I dismissed the
plaintiff’s application for an order putting the defendant company into liquidation.1
1 InlandsAirWater Counsel v Manawatu-Whanganui Lass Ltd [2025] NZHC 351.
The plaintiff contends that I failed to acknowledge valid affidavits of service and did
not disclose “prior dealings with associated parties”.
[3] Pursuant to the High Court Recusal Guidelines 2017,2 a judge has an obligation
to sit on any case allocated to him or her unless grounds for recusal exist. The question
of recusal is for the judge hearing the case.3 A judge should recuse him or herself if,
in the circumstances, a fair-minded, fully informed observer would have a reasonable
apprehension that the judge might not bring an impartial mind to the resolution of the
question the judge is required to decide. The standard for recusal is one of “real and
not remote possibility”, rather than probability.
[4] There is a two-stage test. I must consider:
(a) first, what it is that might possibly lead to a reasonable apprehension by
a fully informed observer that I might decide the case other than on its
merits; and
(b) second, whether there is a “logical and sufficient connection” between
those circumstances and that apprehension.
[5] The first point is that the plaintiff is raising various allegations regarding my
conduct in relation to the Judgment which it contends materially prejudiced its position
in the case, and may constitute predetermination or a miscarriage of justice. However,
in the year since the Judgment was issued, the plaintiff has not sought recall of the
judgment, nor pursued any appeal of the judgment, nor made any complaint to the
Judicial Conduct Commissioner.
[6] Second, the only remaining matter for me to determine in this proceeding is
the defendant’s application for non-party costs arising following the Judgment. It is
implicit in r 14.9 of the High Court Rules 2016 that the general or desirable practice
is for the Judge who decided the substantive matter to also determine costs. No issue
2 Published in accordance with 171(1) of the Senior Courts Act 2016.
3 A party cannot apply for recusal of a judge on a without notice basis, that is, on basis that the judge
cannot consider and determine the application. The plaintiff purported to do that with the present
application, but the application was properly referred to me by the Registry.
of bias can possibly arise simply from the fact that I dismissed the plaintiff’s
substantive application to put the defendant into liquidation.4 Rather, the fact that I
determined the substantive case means that it is appropriate and desirable that I
determine the application for costs.
[7] I now consider the specific issues raised by the plaintiff.
[8] The plaintiff contends that I refused to accept an affidavit of service of
James Dixon tendered at the hearing as evidence of service, and that this “constitutes
a serious procedural irregularity and potential miscarriage of justice”. However, it is
clear from the Judgment that the dismissal of the application for liquidation does not
turn on proof of service of the purported statutory demand or any other document. For
the purposes of the application, I proceeded on the basis that the statutory demand and
other documents had been properly served.5 The application was dismissed on
substantive grounds. I found that the plaintiff was not a creditor capable of being owed
a debt and applying for an order for liquidation, and that the plaintiff had not
established that the defendant was insolvent or that it was just and equitable that the
defendant be put into liquidation. There was no serious procedural irregularity or
potential miscarriage of justice arising in relation to any affidavit of service.
[9] The plaintiff says that I “practised law from the bench by directing the
defendant in an unbalanced manner” in a minute dated 16 December 2024.6 The
minute relates to a telephone conference scheduled for 17 December 2024, which was
intended to be used for timetabling the liquidation application to a defended hearing.
The conference had to be vacated because the plaintiff’s representative advised the
Court that she was unavailable for the conference. To progress the proceeding, I set
the matter down for a defended hearing (with the Registry to liaise with the parties
regarding an appropriate date) and directed that the parties were to confer regarding
the pre-hearing timetable. If agreement could not be reached, then separate
memoranda could be filed, and the timetable would be determined on the papers.
4 Deliu v Johnstone [2021] NZCA 646 at [4].
5 A purported affidavit of service of the statutory demand dated 16 August 2024 had been accepted
for filing prior to the hearing which states that the statutory demand was served on 16 July 2024.
6 InlandsAirWater Counsel v Manawatu-Whanganui Lass Ltd CIV-2024-454-74 [Minute of
AJ Skelton], 16 December 2024.
There was nothing inappropriate or unbalanced about the directions made. I proposed
that one of the steps in the timetable would be for the plaintiff to file and serve any
further affidavit evidence it wished to file in support of its application.
[10] The plaintiff contends that I failed to disclose prior involvement in a
proceeding involving Michael Retter, who is stated to be “associated” with the
plaintiff. I note that “Michael Settler” provided an affidavit sworn on 27 September
2024 in support of the plaintiff’s application for liquidation. He described himself as
“Chairman of inlandsAirWater counsel”. Following the issue of the Judgment, in
July 2025, the defendant applied for non-party costs against three people, including
“Michael Retter”, who is alleged to have been chairman of the plaintiff. The prior
proceeding referred to is CIV-2023-454-87. My only involvement in that proceeding
was making an order for substituted service in respect of Michael Retter and
Vivenne Retter on 31 October 2023. This related to Westpac New Zealand Ltd
attempting to serve a property law notice on Michael Retter and Vivienne Retter. The
proceeding has not progressed any further. It does not appear to have anything to do
with the plaintiff or defendant in this proceeding or the issues in this proceeding. I do
not consider that my very limited involvement in this unrelated proceeding needed to
be disclosed to the parties in this proceeding. I note that an expression of opinion in
an earlier case is not of itself a ground for recusal.7 However, I did not express any
opinion about Mr Retter in the order for substituted service nor make any findings in
respect of his credibility or otherwise. There is no basis on which my limited
involvement in the unrelated proceeding could give rise to any reasonable objection
to my involvement in the present case. Nor could it possibly give rise to any
reasonable apprehension of bias in the present proceedings.
[11] The plaintiff suggests that I prohibited advertising of the application for
liquidation in the present case and then criticised the plaintiff for not advertising the
application in the Judgment, creating a prejudicial position.8 An interim order was
made restraining advertising on 28 November 2024. However, the interim order was
made pending determination of any application by the defendant for an order
7 High Court Recusal Guidelines at 5.2.
8 Judgment at [30].
restraining advertising.9 On 3 December 2024, counsel for the defendant filed a
memorandum advising that the defendant had elected not to pursue an application for
stay of advertising and wished to proceed directly to the defended hearing of the
plaintiff’s application for liquidation. Therefore, the interim order lapsed. In the
Judgment, I simply noted that, although the outcome did not turn on the issue, the
plaintiff had failed to provide any evidence of advertising as required by r 31.14 of the
High Court Rules. There was no prejudice to the plaintiff in this regard. As noted
above, the application for liquidation was dismissed on substantive grounds.
[12] Finally, the plaintiff contends that I somehow made orders as to costs in the
Judgment which were prejudicial to the plaintiff.10 However, my costs orders were
entirely standard. I noted that I had not heard fully from the patties on costs. I
indicated my preliminary view that the defendant was successful and was entitled to
2B scale costs with a 50% uplift to recognise that the statutory demand had been
improperly issued. I directed that the parties were to attempt to agree costs and if
agreement could not be reached then memoranda could be filed. The defendant had
raised the possibility that it would be seeking non-party costs at the hearing.
Therefore, I noted that if the defendant intended to pursue non-party costs, it would
have to file a formal application supported by affidavit evidence and serve this on the
non-parties and file an affidavit of service. These directions were to ensure that the
non-parties were made aware of any application for costs made against them and had
the opportunity to oppose the application, which two of the non-parties have done.
There is no reasonable basis on which my directions as to costs in the Judgment could
be seen as prejudicial to the plaintiff or the non-parties.
[13] For the reasons set out above, I am not satisfied that any of the matters raised
by the plaintiff could possibly lead to a reasonable apprehension by a fair-minded,
fully informed observer, that I might decide the remaining issues to be determined in
this case other than on the merits. To the extent that I need to consider the second stage
of the test (set out above), I am not satisfied that there any “logical and sufficient
9 InlandsAirWater Counsel v Manawatu-Whanganui Lass Ltd CIV-2024-454-74 [Minute of AJ
Skelton], 28 November 2024.
10 At [32]-[33].
connection” between the circumstances raised by the plaintiff and the alleged
apprehension of bias.
[14] Accordingly, the plaintiff’s application seeking that I recuse myself from this
proceeding is dismissed.
[15] The plaintiff also seeks an “interim injunction” or stay of the proceedings
pending determination of the application for recusal. As I have now determined the
application for recusal, there is no basis for any “interim injunction” or stay of the
proceedings. There is no basis for reassigning the proceedings to another judicial
officer.
Associate Judge Skelton
Solicitors:
CR Law, Palmerston North for Defendant
NOTICE REQUIREMENT
The solicitors on the record for the parties are to promptly provide a copy of this minute to their
clients (r 5.43).