Amende v Kennedy

[2017] NZHC 2298

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-396 [2017] NZHC 2298

BETWEEN

DAVID REINHARD AMENDE AND

RONDA LOUIS AMENDE Applicants

AND

SHARYN KENNEDY, DANIEL MARK KENNEDY AND CAMERON JAMES KENNEDY

Respondents

Hearing:	On the papers
Counsel:	H Fulton for Applicants
Judgment:	22 September 2017

JUDGMENT OF WHATA J

This judgment was delivered by me on 22 September 2017 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors:           RS Wood Lawyer, Auckland

AMENDE v KENNEDY [2017] NZHC 2298 [22 September 2017]

[1]      In  my  judgment  of  11  July  2017,  I  discharged  Mr  Botting  from  his undertaking to hold a specified sum pending completion by the defendants of certain works.1   I then directed that the undertaking sum be paid into Court.

[2]      The  applicants  now  seek  costs  against  the  respondents  on  a  2B  basis, increased by 50 per cent to reflect the respondents’ unnecessary contributions to time and expense. Because the respondents appear to now be overseas, and indeed have taken no steps in these proceedings, they seek that the award of costs comes from the undertaking sum paid into Court.

Assessment

[3]      The respondents have not taken a step in these proceedings.   There were offers made to resolve these proceedings without recourse to the Court; no response was given to these offers.

[4]      In these circumstances, I am satisfied the applicants are entitled to scale costs. But I do not accept increased costs (an uplift of 50 per cent) are appropriate. I acknowledge the complete failure by the defendants to take any steps to mitigate the litigation or costs incurred by the applicants is a factor, particularly in the face of numerous settlement offers.   Rule 14.6 specifies that costs may be increased in circumstances where there is a failure to seek offers for settlement or otherwise

dispose of the proceedings.2

[5]      But these are standard features of judgments by default. The defendants have taken no steps to contest the plaintiffs’ assertions; their default was a complete one, and did not prolong the proceedings beyond the steps necessary for the plaintiffs to obtain judgment. By contrast, in Hayes v Parlane, Duffy J ordered increased costs where the defendant had made a claim initiating the proceedings, engaged in proceedings brought by the plaintiffs at a late stage, sought an adjournment and then

discontinued his defence.3 This case is more analogous to Pacific Loans Ltd v Viau-

1      Amende v Kennedy [2017] NZHC 1593.

2      See High Court Rules 2016, r 14.6(3)(b)(v).

3      Hayes v Parlane [2014] NZHC 2416 at [5]-[7], Hayes v Parlane [2015] NZHC 112 at [9].

hala’api’api, where in the context of a complete default Wylie J concluded the defendants had done nothing to justify an award of increased costs.4

[6]     I am satisfied costs, fixed on a 2B basis at $12,265, are reasonable. Disbursements shall be fixed by the Registrar. For the reasons expressed in my judgment of 11 July 2017, the costs award and disbursements should come from the undertaking sum Mr Botting has paid into Court.

[7]      There shall be an order accordingly.

4      Pacific Loans Ltd v Viau-hala’api’api HC Auckland CIV-2011-404-303, 11 August 2011.