Whitford Properties Limited (in receivership and liquidation) v Bruce

[2015] NZHC 1672

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-001977 [2015] NZHC 1672

BETWEEN

WHITFORD PROPERTIES LIMITED

(IN RECEIVERSHIP AND LIQUIDATION)

Plaintiff

AND

ROBERT IAN BRUCE First Defendant

COUMAT LIMITED Second Defendant

GREGORY BRUCE HAYHOW Third Defendant

Hearing:	On the papers
Appearances:	S Nicolson for Plaintiff No appearance for First Defendant S H Barter and K L Blackmore for Second and Third Defendants
Judgment:	17 July 2015

COSTS JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie on 17 July 2015 at 3.00pm

pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

WHITFORD PROPERTIES LIMITED v BRUCE [2015] NZHC 1672 [17 July 2015]

[1]      I refer to my judgment issued on 23 June 2015.

[2]      I held that the second defendant, “Coumat”, and the third defendant, Mr Hayhow, were entitled to costs on a 2B basis, together with their reasonable disbursements.   I anticipated that counsel would be able to reach agreement, but reserved to them the right to file memoranda if there was any difficulty.

[3]      Counsel  for  Coumat  and  Mr  Hayhow  wrote  to  counsel  for  the  plaintiff outlining their claim to costs and seeking a response.  No response was received.

[4]      Accordingly a memorandum has been filed.   The base 2B costs sought by

Coumat and Mr Hayhow total $9,353.

[5]      Counsel for the plaintiff has responded by memorandum.   The base sum sought is not disputed.

[6]      In  his  memorandum,  counsel  for  Coumat  and  Mr  Hayhow  asserted  that urgent attendances were required to respond to the plaintiff’s application for interim orders.  He sought an uplift in relation to those attendances, in the total sum of $995. Any uplift was resisted by the plaintiff.  It accepted that its application was brought on urgently, but noted that some two weeks before the matter was brought before the court, most of the relevant papers had been served on the defendants.   Counsel submitted that the defendants knew that the application was going to be brought on at short notice, and that they agreed to that course of action.  Counsel referred to a minute issued by Associate Judge Christiansen dated 21 May 2015 in this regard.

[7]      I do not consider it appropriate to order an uplift in the scale costs.  It is clear from Associate Judge Christiansen’s minute that counsel for all parties were agreed that there was urgency required.  Further, some of the amounts the defendants will recover because costs have been fixed on a 2B basis, exceed the actual time spent. Taking an “unders and overs” approach,1  I do not consider that there is anything

inappropriate in declining an uplift.

1      See Body Corporate Administration Ltd v Mehta (No 4)  [2013] NZHC 213 at [91] for an explanation of this principle.

[8]      Notwithstanding an invitation to do so, I make no order in relation to costs on an application which was made by the defendants for security.   Security for costs was awarded by Associate Judge Christiansen on 21 May 2015.  Counsel have filed memoranda seeking costs in relation to that matter.   No order has yet been made. Costs  in  regard  to  that  hearing  are  however  a  matter  for  Associate  Judge Christiansen.

[9]      At counsel’s request, I direct that a copy of the memorandum dated 8 July

2015 filed by Coumat and Mr Hayhow is to be forwarded to the Associate Judge.

[10]     Accordingly, I order costs against the plaintiff and in favour of Coumat and

Mr Hayhow in the total sum of $9,353.

Solicitors:

Alexander Dorrington Lawyers, Auckland for Plaintiff

Barter & Co Limited, Auckland for Second and Third Defendants

Wylie J