Auckland Council v Mawhinney

[2014] NZHC 1289

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-4227 [2014] NZHC 1289

BETWEEN

AUCKLAND COUNCIL

Judgment Creditor / Respondent

AND

PETER WILLIAM MAWHINNEY Judgment Debtor / Applicant

Hearing:

13 May 2014

(on papers)

Appearances:

Mr P W Mawhinney - Applicant
Mr D J Neutze for Respondent

Judgment:

10 June 2014

COSTS JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE

This judgment was delivered by me on

10.06.14 at 4 pm, pursuant to

Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

AUCKLAND COUNCIL v MAWHINNEY [2014] NZHC 1289 [10 June 2014]

[1]      I gave judgment in this matter on 27 February 2014 on dealing with an application which Mr Mawhinney filed to set aside a bankruptcy notice served on him 31 October 2013.

[2]      In my judgment my decision was to dismiss the application to set aside the bankruptcy notice.

[3]      Mr  Mawhinney  has  filed  an  application  to  review  my  decision  on  the application to set aside the bankruptcy notice, apparently.

[4]      Mr Mawhinney filed an application to recall my judgment which I dismissed on 7 May 2014.

[5]      The Auckland  Council  as  respondent  to  the application  for recall  of my judgment now seeks costs on that application.  I earlier reserved those costs.

[6]      I accept that the starting point is that the Council as the successful party should be entitled to costs.   I also accept that costs should be on a 2B basis.   Mr Mawhinney however submits that I should defer the issue of costs.   One of the grounds that he relies upon is essentially concerned with the substantive merits of the originating application to set aside the bankruptcy notice.   In my view that is irrelevant and it would be wrong in principle for the Court to decide the costs application on the assumption that the order that I made was wrong.   The second reason Mr Mawhinney objects to fixing of costs is that the step should await the outcome of the hearing of the review applications.

[7]      I do not accept that there is any merit in the latter suggestions.   Whether Mr Mawhinney agrees with my decision not to recall a judgment or not, it stands as a valid judgment unless and until it has been set aside.  Therefore as matters stand the Auckland Council is to be treated as the successful party on that application.  As a result, in accordance with the principles stated in HCR 14.2 Mr Mawhinney as the party  who  failed  with  respect  to  that  application  should  pay  the  costs  of  the successful party, that is the Auckland Council.

[8]      I therefore order that Mr Mawhinney is to pay costs on a 2B basis together

with disbursements to be fixed by the Registrar.

J.P. Doogue

Associate Judge