Chevin v Valmont

[2022] NZHC 2057

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-1547

[2022] NZHC 2057

BETWEEN

PETER LOUIS CHEVIN

Plaintiff

AND

CLARK VINCENT VALMONT

First Defendant

TIMOTHY LAIRD EDNEY and THE GOLDEN BELT MINING COMPANY LIMITED

Second Defendants

Hearing:

On the papers

Counsel:

No appearance for the Plaintiff

S Lowery for the First Defendant
D Chisholm QC and M Lenihan for the Second Defendants

Minute:

18 August 2022

COSTS JUDGMENT OF ASSOCIATE JUDGE SUSSOCK

This judgment was delivered by me on 18 August 2022 at 4pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors / Counsel:

Hucker & Associates, Auckland Greenwood Roche, Auckland

Brown Partners, Auckland

Bankside Chambers, Auckland D Chisholm QC, Auckland

M Lenihan, Auckland

CHEVIN v VALMONT [2022] NZHC 2057 [18 August 2022]

Introduction

[1]                 The first and second defendants apply for an award of costs against the plaintiff, Mr Peter Chevin, following Mr Chevin’s proceedings being struck out.

[2]                 In a judgment issued on 9 February 2022, I made unless orders allowing Mr Chevin until 9 April 2022 to pay security for costs, failing which the proceeding would automatically be struck out.1 Mr Chevin did not pay security, so the proceedings were struck out as ordered.

Costs claimed

[3]                 The first defendant, Mr Clark Valmont, now seeks an award of costs on a 2B basis of $7,648 plus disbursements of $660 for a total of $8,308.

[4]                 The second defendants, Mr Timothy Edney and The Golden Belt Mining Company Limited, seek 2B costs of $7,648 plus disbursements of $160 for a total of

$7,808.

[5]                 The costs sought by both defendants are the costs and disbursements in the proceedings that are not covered by the two earlier costs awards made in the defendants’ favour on 18 August 2021 and 7 March 2022.

[6]                 The 18 August 2021 costs judgment was in respect of the defendants’ strike out application and the plaintiff’s application to vary the consent order in respect of security for costs. The defendants were awarded costs on a 2B basis, in favour of the first defendant in the amount of $7,528.50 plus disbursements of $550 and in favour of the second defendant in the amount of $5,616.50 plus disbursements of $110.2

[7]                 The 7 March 2022 costs minute was in respect of the plaintiff’s application for leave to appeal and the defendants’ joint application for strike out. The defendants were awarded costs by consent on a 2B basis totalling $10,635.50 in favour of the first

1      Chevin v Valmont [2022] NZHC 134.

2      Chevin v Valmont [2021] NZHC 2161.

defendant and $11,113.50 plus disbursements of $660 in favour of the second defendant.3

Plaintiff’s position

[8]                 Both defendants have invited Mr Chevin’s solicitor to comment on the amounts now sought. No response was received and no memorandum has been filed by or on behalf of Mr Chevin.

[9]                 I consider that sufficient time has been given for any response by the plaintiff and costs now ought to be determined.

Discussion

[10]              I have considered the costs sought, as set out in each of the schedules attached to the first and second defendants’ memoranda.

[11]              The costs set out in the first defendant’s schedule all appear appropriately claimed.

[12]              The costs set out in the second defendant’s schedule include costs for a notice of opposition to the application by Mr Hucker to withdraw as solicitor on the record dated 19 February 2021. I do not include costs for this step in the award made below as it appears to have been filed in a separate proceeding, CIV-2019-404-1119, for which costs have already been ordered. I therefore reduce the costs awarded to the second defendants by the amount claimed in respect of this step of $1,434 in the interim, to $6,214.

[13]              However, I reserve leave to the second defendants to file a further memorandum in respect of the notice of opposition if costs ought to be awarded in this proceeding in respect of it.

3      Chevin v Valmont HC Auckland CIV 2019-404-1547, 7 March 2022 (Minute of Associate Judge Sussock).

Orders

[14]I order:

(a)the plaintiff is to pay costs to the first defendant on a 2B basis totalling

$7,648 in costs plus disbursements of $660 for a total of $8,308;

(b)the plaintiff is to pay costs to the second defendants on a 2B basis totalling $6,214 plus disbursements of $50 for a total of $6,264; and

(c)leave is reserved to the second defendants to apply for further costs by way of memorandum in respect of the notice of opposition referred to in the costs schedule attached to their memorandum if costs ought to be awarded in this proceeding.

Associate Judge Sussock