Westpac New Zealand Limited v Lamb

[2012] NZHC 475

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-005066 [2012] NZHC 475

UNDER  Part 12 of the High Court Rules 2008

IN THE MATTER OF     an application for summary judgment

BETWEEN  WESTPAC NEW ZEALAND LIMITED Plaintiff

ANDJOHN WARWICK LAMB AND LESLIE JENNIFER LAMB

Defendants

Hearing:         24 February 2012

Appearances: On the papers

Judgment:      20 March 2012

COSTS JUDGMENT OF WYLIE J

This judgment was delivered by me on 20 March 2012 at 4.30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Copies to:

L Lim, Simpson Grierson, Auckland. Email [e-mail]

J W and L J Lamb. Email: [e-mail]

WESTPAC NZ LTD V LAMB  HC AK CIV-2011-404-005066 [20 March 2012]

[1]      I  issued  a  reserved  judgment  in  this  matter  on  1  March  2012.    I  gave summary judgment to Westpac in the sum of $346,324.36, together with interest on that sum.  I also ordered that Westpac was entitled to its reasonable solicitor-client costs and directed the parties to file memoranda in that regard.

[2]      A memorandum has been received from Westpac.   It seeks costs on a full indemnity basis in the sum of $37,725.50, as well as disbursements of $1,538.50.

[3]      Rule 14.6(4)(e) of the High Court Rules 2008 provides that the Court can order  a  party to  pay  indemnity  costs,  if  the  party  claiming  costs  is  entitled  to indemnity costs under a contract or deed.

[4]      Here, the cross-guarantee signed by the respondents required them to pay all costs and liabilities that Westpac incurred in enforcing, contemplating, or attempting to enforce the cross-guarantee, or any security for the guarantee.   The obligation extended to legal fees on a full indemnity basis.

[5]      Where a party is contractually entitled to its solicitor-client costs, the relevant question becomes “what is the reasonable amount of costs to be awarded in respect of the proper and necessary steps to resolve the issue?”[1]

[1] Bradbury v Westpac Banking Corporation (2008) 18 PRNZ 859 (HC) at [17].

[6]      I  have  considered  the  affidavit  filed  by  Mr  Bracefield  on  behalf  of  the plaintiff.   I have also  considered the invoices  attached  to his affidavit, and the explanations given in respect of each invoice.

[7]      I am satisfied that the tasks that were the subject of each invoice come within the costs indemnity, and that the tasks undertaken were of a kind contemplated by that indemnity.   Furthermore, the work was reasonably necessary, and the rates at which time has been charged are reasonable.  The bulk of the work on this matter was carried out by an associate with six years post-admission experience, at an hourly rate of $330. Where partner supervision was required, the hourly rate charged was $495. Those sums are not out of the ordinary.  The work was appropriately done

by a senior associate.

[8]      There are no other principles derived from the general law of contract, or otherwise, which operate to deny Westpac its prima facie right to judgment for the costs sought.

[9]      I have received no substantive response from the respondents.  Mr Lamb has sent an email to the Registrar that is critical not only of my judgment, but also of New Zealand’s justice system. The email does not call for further comment.

[10]     The disbursements sought by the plaintiff are also appropriate.

[11]     Accordingly I find that the indemnity costs of $37,725.50 claimed by the appellant were reasonably incurred.   I give judgment in favour of the appellant in

that sum, together with disbursements of $1,538.50.

Wylie J