Bartlett v Grant

[2020] NZHC 2827

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-1525

[2020] NZHC 2827

BETWEEN

DOUGLAS JAMES BARTLETT

Applicant

AND

DAMIEN MITCHELL GRANT

Respondent

Hearing:

On the papers

Counsel:

D McGill for Applicant

W van Roosmalen-Werie for Respondent

Judgment:

29 October 2020

COSTS JUDGMENT OF WHATA J

This judgment was delivered by me on 29 October 2020 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors:           Duncan McGill, Auckland

BARTLETT v GRANT [2020] NZHC 2827 [29 October 2020]

[1]    This case came before me as Duty Judge. The applicant seeks 2B costs against the respondent in respect of his application to terminate the receivership over his assets and to prohibit the appointment of another receiver. The immediate background to this is captured in the joint memorandum of counsel. In that memorandum it is noted:

[a]The receiver, Damien Mitchell Grant, has terminated the receivership of the applicant, Douglas James Bartlett.

[b]Asset Lease NZ Limited has acknowledged that it did not have a right to appoint the receiver and that it will be liable for any fees incurred by the receiver as a result of the appointment over Mr Bartlett’s property.

[c]Asset Lease NZ Limited and AJO Trustee Company Limited have undertaken not to appoint another receiver under the 2017 deed now or in the future.

[2]    On that basis, the applicant withdrew his originating application for orders terminating the receivership and prohibiting the appointment of another receiver.

[3]    The costs issues remained unresolved. The applicant submits that while the Court was not required to finally determine the matter, the applicant was successful as the proceedings were filed and served on the receiver and the appointer, Asset Lease NZ Limited, the receiver agreed to terminate the receivership and the appointer acknowledged that it had no right to appoint the receiver and undertook not to appoint another receiver. These were the orders sought by the applicant. It is also noted that the applicant had no option but to bring the originating application as the receiver had refused to terminate the receivership when the applicant first sought termination of the receivership on 20 August 2020. And again, when the applicant, through his solicitors, sought the termination on 26 August 2020.

[4]    The respondent submits that I should reduce costs by as much as 50 per cent. He submits the respondent considers the correct factual and legal  position is  that  Mr Bartlett defaulted on his obligations under the relevant deed, thus engaging the security clause over his present and after-acquired personal property. It is submitted

also that the respondent acted reasonably and practicably throughout the litigation, indicating to the Court and to the applicant early in the piece that the matters would more than likely resolve. He contends the delay, if any, in reaching the resolution was the result of the applicant’s insistence that the appointer provide an additional undertaking and acknowledgement, subsidiary to the receiver’s appointment, before discontinuing the proceedings, the outcome over which the respondent had little or no control.

[5]    It is noted that costs may be reduced to take into account the less strenuous trial which follows the defendants abiding the outcome, the extent of reduction being informed also by the extent of contributing error or other conduct of the defendant.

[6]    The respondent also submits that he acted and approached the application responsibly and sought to resolve the issues with the applicant from an early stage and put significant time and effort to resolve such issues.

Assessment

[7]    Generally, costs must follow the event.1 While it was not necessary for the applicant to see the application through to a conclusion in terms of Court orders, the applicant was plainly successful in the result. I acknowledge the respondent’s submissions that he acted responsibly, but that by itself is not a reason to discount the costs order. In reality, the applicant was put to the trouble and cost of commencing the proceedings and seeing them through to the point that was ultimately reached.

[8]    I therefore make a costs order on a 2B basis. As to quantum, based on my review of the application and supporting evidence, two days is allowed for item 24. I also only allow 0.2 days for the appearance at which agreed timetabling orders were made. I make no allowance for sealing.

1      High Court Rule 14.2.1(a).