Auckland Indian Association Incorporated v Patel HC Auckland CIV 2009-404-7322

[2009] NZHC 2601

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2009-404-007322

BETWEEN  THE AUCKLAND INDIAN ASSOCIATION INCORPORATED Applicant

ANDRAMAN PATEL Respondent

Hearing:         On The Papers

Appearances: CCH Allan/TJP Bowler for Applicant

B G Allen for Respondent

Judgment:      18 December 2009 at 2 pm

JUDGMENT OF ASSOCIATE JUDGE ROBINSON

This judgment was delivered by me on 18 December 2009 at 2 pm, Pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date…….

Solicitors:           Davenports West, PO Box 21-248, Henderson

Grove Darlow & Partners, PO Box 2882, Auckland

THE AUCKLAND INDIAN ASSOCIATION INCORPORATED V RAMAN PATEL HC AK CIV 2009-404-

007322  18 December 2009

[1]      Pursuant to an order for costs made by Harrison J on 28 July 2009 the respondent was ordered to pay $14,156.80 costs to the applicant in respect of CIV

2007-404-5809 on or before 25 August 2009. Because the respondent was in default of the order for payment of such costs the applicant issued a bankruptcy notice which was duly served on the respondent on 17 September 2009.

[2]      Following   service   of   the   bankruptcy   notice   on   the   respondent,   the respondent’s counsel wrote to the applicant advising that the respondent was solvent and was seeking to have his former solicitors pay the order for costs. Following correspondence between the applicant’s solicitors and the respondent’s solicitors the respondent paid $15,000 to his solicitors to be held in trust. On receiving that advice the applicant’s solicitors applied for and obtained an interim charging order charging the trust account of the respondent’s solicitors with payments of costs ordered in the applicant’s favour amounting to $14,479.54. When the charging order was served on the respondent’s solicitors the applicant received payment of its costs in full.

[3]      The  applicant  now  seeks  costs  in  connection  with  the  issuing  of  the bankruptcy notice, the application for the charging order and ancillary matters. Relying  on  rule  14.6(4)(b)  the  applicant  seeks  indemnity  costs  amounting  to

$5,240.62. In the memorandum filed by the applicant in support the applicant seeks leave to file further submissions supporting an increased costs order should the Court determine that the applicant is not entitled to indemnity costs.

[4]      The respondent has filed a memorandum in reply opposing the order for indemnity costs. In that memorandum counsel for the respondent submits that any order for costs should be on the basis of the lower scale. It is pointed out the work involved in the charging order was essentially procedural and mechanical and was directed at a law firm’s trust account.

[5]      On  11  December  2009  an  order  was  made  at  the  applicant’s  request extending  until  15  December  2009  the  time  for  filing  a  memorandum  by  the applicant in reply to the respondent’s memorandum. The memorandum was received on  17  December  2009.  The  memorandum  concludes  with  a  submissions  that

indemnity costs should be imposed because the respondent wilfully disobeyed a

Court order.

[6]      Rule 14.6(4)(b) does enable the Court to order indemnity costs against a party who has disobeyed an order of the Court. There can be no doubt that the respondent has disobeyed the Court order in refusing to pay the costs.

[7]      However,  I take into  account  in  the  respondent’s  favour  his  payment  of sufficient to cover the costs into his solicitor’s trust account. Consequently, the serving of the charging order has been effective.

[8]      I am satisfied the applicant is entitled to costs. Whilst the respondent has shown some contempt for the Court’s order in refusing to pay costs his payment of funds sufficient to cover costs into his solicitor’s trust account has gone some way to purging that contempt.

[9]      In the circumstances I am prepared to make an order for the respondent to pay the applicant’s costs. However those costs will not be assessed on an indemnity basis for the reasons I have set forth in this Judgment. The costs of the applicant therefore will be allowed in respect of the bankruptcy notice and the charging order

on a 2B basis together with disbursements as fixed by the Registrar.

Associate Judge Robinson