875 Frankton Road Limited v Gabe

[2014] NZHC 451

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CIV-2011-425-000032 [2014] NZHC 451

BETWEEN  875 FRANKTON ROAD LIMITED Plaintiff

ANDROSALINA GABE First Defendant

RAJEEV NAIK Second Defendant

CIV-2011-425-000034

BETWEEN  875 FRANKTON ROAD LIMITED Plaintiff

ANDRAJEEV NAIK Defendant

Responses:               Dealt with on the papers from: S N McKenzie for Plaintiff

(No Response from First Defendant)
Email Response from Second Defendant/Defendant dated
10 February 2014

Judgment:                12 March 2014

JUDGMENT OF GENDALL J (As to Costs)

[1]      In a judgment I gave on 27 November 2013 relating to proceedings CIV-

2011-425-000032 and CIV-2011-425-000034 I granted judgment to the plaintiff against the defendants in both proceedings for damages and interest with respect to two failed transactions relating to the purchase of apartments in Queenstown.

[2]      In that 27 November 2013 judgment I addressed the issue of costs and noted that the plaintiff clearly was entitled to costs from the defendants with respect to

875 FRANKTON ROAD LIMITED v GABE [2014] NZHC 451 [12 March 2014]

each proceeding.  I went on to direct that if the parties were unable to settle the issue of costs between themselves then they could file memoranda sequentially and, in the absence of either party indicating they wished to be heard on the question of costs, I would decide that issue based on the material then before the Court.

[3]      Counsel  for  the  plaintiff  has  now  filed  a  memoranda  as  to  costs  dated

19 December 2013.  From this it appears that the parties have been unable to settle the question of costs between themselves.

[4]      The defendant in proceeding CIV-2011-425-000034 who is also the second defendant in proceeding CIV-2011-425-000032 Rajeev Naik (Mr Naik), although not filing any memorandum has sent an email message to the Court dated 10 February

2014 which states that he does not agree with the judgment and would like to challenge the orders made and appeal but makes no submissions with respect to the issue of costs.

[5]      The  first  defendant  in  proceeding  CIV-2011-425-000032,  Rosalina  Gabe, despite receiving several communications from the Court concerning my judgment and the need to file any submissions she may wish to, has made no response.

[6]      What is clear to me here is that in both proceedings CIV-2011-425-000032 and CIV-2011-425-000034 the plaintiff has been entirely successful.  Counsel for the plaintiff has submitted that the plaintiff should be awarded costs on a category 2B scale basis here and I agree.

[7]      Attached to the memorandum from counsel for the plaintiff is a schedule of costs calculated on a category 2B basis for each of the proceedings CIV-2011-425-

000032 and CIV-2011-425-000034.

[8]      In terms of proceeding CIV-2011-425-000032 the category 2B costs sought are outlined and total $38,877.50.  The costs sought in my view are appropriate and are approved.  In addition disbursements on this proceeding totalling $3585 which are essentially court filing fees, a scheduling fee and sealing fee, are in order and approved.

[9]      So far as proceeding CIV-2011-425-000034 is concerned, the schedule of costs attached to the memorandum outlines the claim for these on a category 2B basis again totalling $38,877.50.   I have considered each item claimed and in my view it is appropriate.  Category 2B costs for this proceeding are approved at this figure of $38,877.50.   In addition disbursements again totalling $3585 for this proceeding CIV-2011-425-000034 are sought and appropriate.   An order for disbursements of this figure is also to be made.

[10]     The plaintiff has succeeded against all defendants on both proceedings and as such pursuant to r 14.2(a) High Court Rules it is entitled to costs as the successful party, and I am satisfied that costs on a category 2B basis are appropriate.   The following orders are now made therefore:

(a)      The defendants in proceeding CIV-2011-425-000032 are to pay to the plaintiff costs on that proceeding calculated on a category 2B basis totalling $38,877.50 together with disbursements totalling $3585.

(b)The defendant in proceeding CIV-2011-425-000034 is to pay to the plaintiff costs on that proceeding calculated on a category 2B basis totalling $38,877.50 together with disbursements totalling $3585.

...................................................

Gendall J

Solicitors:

Preston Russell Law, Invercargill

Copy to Rosalina Gabe, First Defendant

Copy to Rajeev Naik, Second Defendant and Defendant