A v B

[2012] NZHC 142

NOTE: ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS OR IDENTIFYING PARTICULARS OF PLAINTIFF.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-003945 [2012] NZHC 142

BETWEEN  A Plaintiff

ANDB Defendant

Hearing:         On the Papers

Counsel:         I M Gault for Plaintiff

C C Mansell for Defendant

Judgment:      14 February 2012

COSTS JUDGMENT OF WHATA J

This judgment was delivered by Justice Whata on 14 February 2012 at 4.30 p.m., pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors:

Bell Gully, PO Box 4199, Auckland 1140

Martelli McKegg, PO Box 5745, Wellesley Street, Auckland 1141

A V B HC AK CIV-2011-404-003945 [14 February 2012]

[1]      A seeks costs on B’s unsuccessful security for costs application.  Costs on a

2B basis would amount to $3,008.  However, given the basis upon which counsel is acting, A seeks reduced costs of $1,304.80.  There is no dispute as to quantum by B. However, B submits that the decision to file the application for costs was reasonable, given  the  plaintiff  had  referred  to  her  financial  position  in  the  pleadings  and affidavits filed in the action.

[2]      B submits further:

(a)      The first requirement of r 5.45 was fulfilled, namely that there was reason to believe that the plaintiff would be unable to pay the costs of the defendant if the plaintiff was unsuccessful in her proceedings.

(b)      In terms of the merits, I noted that the defendant’s claim was strong in

respect of the first photo shoot.

(c)      The approach taken by me to determining this issue was novel and unanticipated by the defendant.

[3]      Ordinarily costs  follow  the event.    But  in  this  case,  one of the primary reasons for allowing the matter to proceed without security for costs, was the public interest  in  seeing  the  claim  ventilated.    I accept  B’s  contention  that  there  was otherwise a basis for requiring security for costs, A being plainly of limited means and there being a real risk that the defendant will not be able to recover costs against the plaintiff.

[4]      In these somewhat unusual circumstances, I am of the view that costs on the application should be reserved to be considered in the round once the Court has had the proper opportunity to assess the full merits of A’s contentions.