Chevin v Valmont

[2021] NZHC 2161

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-1547

[2021] NZHC 2161

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

Appearances:

No appearance for the Plaintiff

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

Judgment:

18 August 2021

COSTS JUDGMENT OF ASSOCIATE JUDGE SUSSOCK

This judgment was delivered by me on 18 August 2021 at 4.30pm 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

CHEVIN v VALMONT [2021] NZHC 2161 [18 August 2021]

Introduction

[1]                 By my judgment dated 18 December 2020, I dismissed the defendants’ application to strike out these proceedings and the plaintiff’s application to vary the consent order made in respect of security for costs.

[2]                 The defendants sought costs on the application whether successful or not because the plaintiff had caused unnecessary expense in failing to comply with the consent order made in relation to security for costs. In the defendants’ submission, even on the plaintiff’s best case, he was seeking an indulgence by applying for a variation of an order that he freely consented to when represented by senior counsel.

[3]                 Furthermore, the plaintiff only consented to the security for costs order after a joint application with significant affidavit evidence was filed by the defendants and after leave was granted for the plaintiff to file his opposition out of time.

[4]                 In the special circumstances of this case I directed that costs were to be paid to the defendants on a 2B basis in respect of both applications, with memoranda to be filed if costs could not be agreed between the parties.

[5]                 A joint memorandum was filed on behalf of the defendants on 3 February 2021 seeking costs as the parties had been unable to agree. The memorandum recorded that the defendants had made a proposal to the plaintiff but had received no response.

[6]                 On 9 February 2021, the plaintiff filed an application for leave to appeal my judgment dated 18 December 2020. However, no memorandum in response to the defendants’ costs memorandum was filed.

[7]                 On 23 February 2021, counsel for the plaintiff applied for leave to withdraw as solicitor on the record.

[8]                 I issued a Minute on 1 March 2021 directing the plaintiff to file a memorandum confirming:

(a)whether the plaintiff would be acting for himself or if an alternative solicitor would be acting and including the address for service;

(b)whether the plaintiff intended to proceed with the application for leave to appeal my decision of 18 December 2020; and

(c)whether the plaintiff intended to file a memorandum in response to the defendants’ joint memorandum on costs.

[9]Since then no memorandum has been filed by or on behalf of the plaintiff.

[10]             A joint memorandum of the defendants was filed on 16 August 2021 attaching correspondence with the Registry on 5 May 2021 between both counsel for the plaintiff and the Registry and directly with the plaintiff himself. Counsel for the plaintiff confirmed that the matters outstanding at that stage were the application for costs and the plaintiff’s application for leave to appeal my judgment. The plaintiff then confirmed that he still wished to pursue the application for leave to appeal but did not comment on the application for costs.

[11]             In these circumstances, the plaintiff has been given ample opportunity to respond in respect of costs and so I make costs orders in the absence of any memorandum filed by the plaintiff.

Schedule for costs

[12]             I have considered the costs sought in the schedule attached to the defendants’ joint memorandum and agree that all costs are payable other than Step 28 “Obtaining judgment without appearance”. Counsel attended a hearing from which my substantive judgment resulted. Costs are claimed at Step 26 for the appearance at the hearing and so it seems incompatible to also claim costs for obtaining judgment without an appearance. There is no explanation in the joint memorandum filed as to why these costs are also claimed. I therefore discount the costs claimed by 0.3 of a day for each of the first and second defendants.

Orders

[13]             I award costs 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.

Associate Judge Sussock