Atkinson v Palairet HC Napier CIV-2011-441-492

[2011] NZHC 1143

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CIV-2011-441-492

IN THE MATTER OF     the Insolvency Act 2006

AND IN THE MATTER OF the bankruptcy of JANICE HELEN ATKINSON

BETWEEN  JOHN RICHARD PALAIRET Judgment Creditor

Judgment:      13 September 2011 at 3:00 PM

JUDGMENT AS TO COSTS OF ASSOCIATE JUDGE D.I. GENDALL

This judgment was delivered by Associate Judge D.I. Gendall on 13 September 2011 at 3.00 pm under r 11.5 of the High Court Rules.

Solicitors:           Buddle Findlay, Solicitors, PO Box 2694, Wellington 6140

Introduction

JR PALAIRET v JH ATKINSON HC NAP CIV-2011-441-492 13 September 2011

[1]      On 3 August 2011 the judgment creditor, Mr John Richard Palairet requested this Court to issue a Bankruptcy Notice against the judgment debtor, Ms Janice Helen Atkinson.

[2]      The  judgment  debt  in  this  Bankruptcy  Notice  was  for  the  total  sum  of

$12,864.29 which represented an amount due under an earlier order made in this Court on 4 July 2011 for costs against the judgment debtor totalling $11,656.00 plus disbursements of $1,157.25, together with a small amount for interest from that date.

[3]      In  addition,  the  Bankruptcy  Notice  made  a  claim  for  costs  against  the judgment debtor on the issue of the Notice of $526.00 which included a fee of

$150.00 for serving the Notice.

[4]      The Bankruptcy Notice was served personally on the judgment debtor on 9

August 2011.

[5]      On 17 August 2011 the judgment debtor paid the base debt claimed in the

Bankruptcy Notice.

[6]      An issue now arises  concerning costs  and  disbursements  claimed  by the judgment creditor on the Bankruptcy Notice and subsequent settlement of the debt, against the judgment debtor.

The Parties’ Arguments and My Decision

[7]      In a document headed “Interlocutory Application Without Notice by Janice

Atkinson (Judgment Debtor) to the High Court Regarding the Fixing of Costs” dated

23 August 2011, the judgment debtor sought effectively that no costs should be paid by her with regard to the Bankruptcy Notice (given that she had now paid the core debt under the Notice).  She contended this should also include the $526.00 claimed in the Bankruptcy Notice which remained unpaid.

[8]      On receipt of that application in the Court on 22 August 2011 I directed that it be served on the judgment creditor who was to have 10 working days to respond.

[9]      Counsel for the judgment creditor has now responded in a memorandum dated 7 September 2011.

[10]     That memorandum on behalf of the judgment creditor seeks costs payable as follows:

(a) (b)	The extant scale costs on the Bankruptcy Notice Costs on preparing and filing the memorandum	$   526.00
on the costs question – Item 4.10 of the Third Schedule to the High Court Rules – costs claimed on a scale 2B basis	$   752.00
(c)	Costs on preparing and sealing an order for costs – Item 4.18 of the Third Schedule to the High Court Rules – costs claimed on a scale 2B basis	$   376.00

The total amount the judgment creditor now claims as

costs against the judgment debtor is  $1,654.00

[11]     This is a matter which must come to an end.  There is no doubt in my mind that the judgment creditor is entitled to the extant scale costs on the issue of the Bankruptcy Notice under Item 17 of the Third Schedule of $376.00 plus the $150.00 service fee disbursement totalling in all $526.00.  It was only following the issue of the Notice that the judgment debtor chose to pay the outstanding costs debt.

[12]     Turning now to the claim of $752.00 for scale 2B costs on preparing and filing the judgment creditor’s memorandum as to costs, in my view, this is excessive under all the circumstances here.   Item 4.10 refers to  costs on a memorandum prepared for a case management conference or a mentions hearing.   A reasonable amount for completing the present memorandum, in my view, would be $300.00. An order for this amount is to be made.

[13]     As to the final item, being scale 2B costs on preparing and sealing the order for costs which I am now to make, in terms of the rules, in my view this amount is reasonably  claimed.    An  order  for  this  $376.00  under  Item  4.18  of  the  Third Schedule is appropriate.   For the reasons outlined, above the judgment creditor is now  entitled  to  costs  from  the  judgment  debtor  of  $526.00  plus  $300.00  plus

$376.00 which totals $1,202.00.

[14]     An order for costs is now made against the judgment debtor in favour of the judgment creditor for this $1,202.00.

‘Associate Judge D.I. Gendall’