LDC Finance Limited (in receivership) v Jenkins

[2013] NZHC 994

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CIV-2009-442-000281 [2013] NZHC 994

UNDER  Sections 119 and 137(1)(c) Property Law

Act 2007

IN THE MATTER OF     an Order for Possession under Parts 12 and

13 of the High Court Rules

BETWEEN  LDC FINANCE LIMITED (IN RECEIVERSHIP)

Plaintiff

ANDRICHARD JENKINS AND IAN RODERICK SMITH AS TRUSTEES OF DB ONE FAMILY TRUST

Defendants

Hearing:         On the papers

Counsel:         P J Bellamy for Plaintiff

R W Maze for C N Gordon

Judgment:      7 May 2013

In accordance with r 11.5 I direct that the delivery time of this judgment is 3.30 pm on the 7th day of May 2013.

COSTS JUDGMENT OF MACKENZIE J

[1]      In a judgment delivered on 7 December 2012 I dismissed the plaintiff’s claim in this proceeding.   I reserved costs, giving a preliminary view that Mr Gordon should have costs on a 2B basis.  The parties have subsequently filed memoranda. Mr Gordon seeks costs on a 2B basis in the sum of $42,685.50 plus disbursements

totalling $265.30.

LDC FINANCE LIMITED (IN RECEIVERSHIP) V JENKINS AND SMITH HC NEL CIV-2009-442-000281 [7

May 2013]

[2]      The plaintiff accepts that calculation except in two particulars, both of which relate to an earlier summary judgment application by the plaintiff which was dismissed by Associate Judge Osborne in a judgment delivered on 15 September

2011.

[3]      The first objection is that preparation of written submissions for the summary judgment application (item 24 of sch 3 of the High Court Rules) has been claimed twice.  It appears from the schedule prepared by Mr Maze that one item relates to the costs of Mr Spear, who represented Mr Gordon at the summary judgment stage, and the other to the costs of Mr Maze, who represented Mr Gordon at trial.  Item 24 of sch 3 deals with the preparation of written submissions for interlocutory applications (including  applications  for  summary  judgment).    Only  one  set  of  costs  can  be awarded in this case under that heading.  Mr Maze’s costs of preparation for trial are covered by item 33 of the schedule.  Accordingly, the amount of the claim for costs must be reduced by $2,985.00, from $42,685.50 to $39,700.50.

[4]      The second basis of the plaintiff’s challenge to the costs sought is that the plaintiff was partly successful on the summary judgment application.  Mr Bellamy submits that the summary judgment was argued on two grounds; possession and cancellation  of  leases.     The  Associate  Judge  found  for  the  plaintiff  on  the cancellation  of leases  but  declined  summary judgment  in  respect  of possession. Mr Bellamy submits that there should be between one-third and one-half reduction in the summary judgment costs to reflect the plaintiff’s partial success.

[5]      I do not consider that  any reduction is appropriate.   It is apparent from Associate Judge Osborne’s judgment that the proposition that Mr Gordon may have a  mortgage  with  priority  over  the  plaintiff’s  mortgage  had  not  been  properly addressed by the plaintiff in the summary judgment application.[1]    That point was necessarily fatal to the plaintiff’s summary judgment claim.  I do not consider that the plaintiff can be said to have had any tangible success at the summary judgment stage which would justify a reduction in the costs payable for that stage of the

proceedings.

[1] LDC Finance Ltd (in rec) v Jenkins HC Nelson CIV-2009-442-281, 15 September 2011 at [85].

[6]      There will be an order for costs in favour of Mr Gordon against the plaintiff

in the sum of $39,700.50 plus disbursements of $265.30.

Solicitors:           Duncan Cotterill, Nelson, for Plaintiff

R A Fraser & Associates, Christchurch, for Mr Gordon

“A D MacKenzie J”