Booth v Poplar Road Farms Limited

[2019] NZHC 3295

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2018-454-065

[2019] NZHC 3295

BETWEEN

RAY CHARLES BOOTH

First Plaintiff

RAY CHARLES BOOTH AND ANNE BOOTH

Second Plaintiffs

AND

POPLAR ROAD FARMS LIMITED

First Defendant

JASON BOOTH
Second Defendant

TANIA BOOTH

Third Defendant

Hearing:	On the papers
Counsel:	A N Isac QC and G M Richards for Plaintiffs J W Maassen for Second Defendant
Judgment:	13 December 2019

JUDGMENT OF CLARK J (FORMAL PROOF COSTS)

[1]                  On 12 April 2019 I granted the first plaintiff’s application for rectification of a deed of debt.1 In that judgment I reserved costs in respect of the third defendant’s abandoned interlocutory application.2

1      Booth v Poplar Road Farms Ltd [2019] NZHC 807.

2 At [48].

RAY CHARLES BOOTH v POPLAR ROAD FARMS LIMITED [2019] NZHC 3295 [13 December 2019]

[2]                  On 5 August 2019 I determined the plaintiffs’ application for costs as against the first and third defendants.3

[3]                  The second defendant now seeks costs against the third defendant in respect of her abandoned interlocutory application for leave to file derivative action. No opposition has been filed in response to the memorandum of counsel for the second defendant.

[4]                  The background to the abandoned interlocutory application was set out in a minute of Associate Judge Johnston:

[10] During the course of a case management conference on 31 October 2018, counsel for Ray and Anne Booth, Mr Richards, and counsel for Jason Booth, Mr Maassen, both contended forcefully that the only course open to Tania Booth if she wished the company to defend the rectification proceeding, was to apply for an order under s 165 of the Companies Act 1993. Such an order would entitle her to defend the rectification proceeding in the company’s name. On 14 November 2018 Tania Booth filed such an application in the rectification proceeding. It was met with notices of opposition by both Ray and Anne Booth and Jason Booth. Immediately prior to this case management conference, counsel for Tania Booth, Mr Delany, filed a memorandum saying that she was withdrawing that application in the face of the opposition and because she could not afford to fund a defence of the rectification proceeding (which she anticipated – correctly I think – that she would have to do).

[5]The second defendant seeks costs as follows:

Step	Description	Days	Sum at Category 2 rate
23	Filing opposition to interlocutory application	0.6	$1338
24	Preparation of written submissions	1.5	$3345
12	Appearance at mentions hearing 4 December 2018	0.2	$446
Subtotal	$5129
Disbursement	Filing fee notice of opposition		$ 110
Total	$5239

[6]                  The second defendant notes that the plaintiffs sought costs in relation to the same issue and were awarded the sum now sought by the second defendant.

3      Booth v Poplar Road Farms Ltd [2019] NZHC 1889.

[7]                  Rule 15.23 creates a presumption that a plaintiff who discontinues a proceeding against a defendant must pay costs up to the point of discontinuance. The rule applies to abandoned interlocutory applications.4

[8]                  Consistently with the sum awarded to the plaintiffs, and in light of r 15.23, costs are payable on a 2B basis.

Result

[9]                  The third defendant is to pay to the second defendant costs of $5,129 together with disbursements of $110.

Karen Clark J

Solicitors:

Louise Foley Le Pine & Co, Taupo for First Plaintiff Wadham Partners, Palmerston North for Second Defendant

4      At HR15.23.07; and Rocket Surgery Ltd v Goodwin [2013] NZHC 2667 at [4]; MV Celebre Ltd v Airwork Flight Operations Ltd [2015] NZHC 1400 at [9]; referred to in Kaur v Ministry of Business, Innovation and Employment [2016] NZHC 1862 at [3].