Prescott v Mead

[2023] NZHC 1042

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2022-419-332

[2023] NZHC 1042

UNDER

the Insolvency Act 2006

IN THE MATTER OF

the bankruptcy of Russell Mead

BETWEEN

RYAN PRESCOTT

Judgment Creditors/Applicants

AND

RUSSELL MEAD

Judgment Debtor/Respondent

Hearing:	on the papers
Appearances:	K I Bond for the Creditor Judgment Debtor in person
Judgment:	3 May 2023

COSTS JUDGMENT OF ASSOCIATE JUDGE BRITTAIN

This judgment was delivered by me on 3 May 2023 at 4.00 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors/Counsel:

Braun Bond & Lomas, Hamilton

PRESCOTT v MEAD [2023] NZHC 1042 [3 May 2023]

[1]    The judgment creditors’ application for an order adjudicating the judgment debtor was called in Court on 17 April 2023.

[2]    The last day for service of the creditors’ application, pursuant to r 24.16 of the High Court Rules 2016, was 30 March 2023. The creditors’ application was served on 31 March 2023.

[3]    The judgment debt was paid in full by 13 April 2023. The judgment debtor did not pay costs on the creditors’ application.

[4]    I accept that the Court has jurisdiction to make an order for costs in favour of the judgment creditor notwithstanding that the judgment debt has been paid.1

[5]The judgment creditors are seeking an order for costs for:

(a)the creditors’ application, $1,934.00;

(b)an application for substituted service, which was not determined,

$1,634.00;

(c)appearance at the hearing on 17 April 2023, $956.00; and

(d)preparing a memorandum regarding costs, $956.00.

[6]    An affidavit from the process server, Mr West, confirms that he spoke to the judgment debtor by telephone on 28 March 2023 and the judgment debtor advised that he was in Hawkes Bay and would return to Morrinsville by 31 March 2023, and that the judgment debtor would make himself available for service at that time. That is what occurred, and the documents were served on 31 March 2023.

[7]    However, on 30 March 2023, the judgment creditors made an application for substituted service. Counsel for the judgment creditors submits that the judgment

1      Smith and Partners (A Firm) v Laurenson [2014] NZHC 389, (2014) 22 PRNZ 179.

debtor was being evasive, but I do not accept that as a fair characterisation of the evidence of the communications between the process server and the judgment debtor.

[8]    Given that the judgment debtor was communicating with the process server, and had arranged for service to be affected on 31 March 2023, the following steps were open to the judgment creditors:

(a)if it was appreciated that service would be a day late, service could have been brought forward by agreement; or

(b)the creditors’ application for adjudication could have been enlarged.

The application for substituted service was premature.

[9]The judgment creditors are entitled to the following costs:

(a)in respect of the creditors’ application for adjudication, $1,934.00;

(b)for the appearance on 17 April 2023, (0.2 day) $478.00; and

(c)for the memorandum on costs, (0.2 day) $478.00.

[10]   The judgment creditors are not entitled to costs in respect of the application for substituted service.

Result

[11]The judgment debtor shall pay the judgment creditors costs in the sum of

$2,890.00, inclusive of disbursements.

Associate Judge Brittain