Arthur Devine Limited v Highgate on Broadway Limited

[2012] NZHC 77

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

CIV-2011-406-185 [2012] NZHC 77

UNDER  The Property Law Act 2007

IN THE MATTER OF     Applications for Relief

BETWEEN  ARTHUR DEVINE LIMITED First Applicant

ANDARTHUR LAWRENCE MICHAEL DEVINE

Second Applicant

ANDHIGHGATE ON BROADWAY LIMITED Respondent

ANDHARDY-JONES CLARK Third Party

Counsel:         P J Radich and L P Radich for Applicants

D J Clark for Respondent
J A Maslin-Caradus for Third Party

Judgment:      9 February 2012

I direct the Registrar to endorse this judgment with a delivery time of 10am on the

9th day of February 2012.

JUDGMENT AS TO COSTS OF MACKENZIE J

[1]      In  my  judgment  delivered  on  10 November 2011,  I  reserved  costs  and directed  that  memoranda  may  be  filed.    Memoranda  have  subsequently  been received, and I am now in a position to fix costs.

[2]      The applicants seek costs on a 2B basis.  These are calculated (including an allowance  of  $1,880  for  second  counsel),  at  $13,536.     Counsel  also  seeks

ARTHUR DEVINE LIMITED V HIGHGATE ON BROADWAY LIMITED HC BLE CIV-2011-406-185 [9

February 2012]

disbursements of $538, being a filing fee and a charge for copying, together with a further sum for hearing fees if any such fee is charged to the applicants.

[3]      Counsel for the respondent opposes the grant of costs.   It submits, on the basis of material and affidavits filed since the judgment was  delivered, that the applicants have invoked the Court’s processes for no purpose and caused substantial wasted expenditure.  The respondent further submits that costs otherwise appropriate should be refused or reduced.   The respondent further submits that, if costs are awarded, there should be no allowance for second counsel.

[4]      I consider that costs should be fixed having regard to the position when judgment was delivered.   For this reason, I do not consider it appropriate to have regard to the affidavits filed subsequently.   I do not accept the respondent’s submission that the Court’s processes have been invoked for no proper purpose.  I do not consider that there is any reason to depart from the ordinary principle that costs should follow the event.

[5]      I allow the claim for second counsel.  The proceedings were commenced and pursued with urgency, and the level of resource, involving second counsel, was not unreasonable.  Both counsel took an active part in presenting submissions.

[6]      There will be an order for costs in favour of the first and second applicants jointly in the sum of $13,536, plus disbursements of $538, plus any hearing fees which may be paid by the applicant.

“A D MacKenzie J”

Solicitors:         Radich Law, Blenheim, for Applicants

Wisheart Macnab & Partners, Blenheim, for Respondent

Duncan Cotterill, Nelson, for Third Party.