Cutting v Gould HC Auckland CIV 2004-404-3957

[2010] NZHC 941

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2004-404-003957

BETWEEN  DEREK EDWARD CUTTING AND JOHN FREDERICK ALEXANDER First Plaintiffs

ANDPARKBROOK HOLDINGS LIMITED (IN RECEIVERSHIP AND IN

LIQUIDATION) Second Plaintiff

ANDLESNAM HOLDINGS LIMITED Third Plaintiff

ANDFIFER RESIDENTIAL LIMITED Fourth Plaintiff

ANDKEVIN FRANCIS GOULD First Defendant

ANDDENNIS MICHAEL GRAHAM Second Defendant

(On the papers)

Counsel:         JM Holland for plaintiffs

RB Stewart QC for defendants

Judgment:      2 June 2010 at 12 noon

JUDGMENT OF ASSOCIATE JUDGE FAIRE [on costs]

This judgment was delivered by me on 2 June 2010 at 12 noon], pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

CUTTING  AND ORS V  GOULD AND ANOR HC AK CIV 2004-404-003957  2 June 2010

Solicitors:         Blackwells, PO Box 9325, Auckland for plaintiffs

Lowndes & Associates, PO Box 7311, Auckland for defendants

[1]      Justice Venning referred this file to me to fix costs in the event that counsel could not agree.  The proceedings were listed in the Duty Judge List initially because of an application to review my judgment of 31 August 2009.  Mr Holland’s clients notified the court on 3 March 2010 that their clients accepted the correctness of my judgment of 31 August 2009 and now sought to discontinue the application for review.

[2]      Mr  Stewart QC  filed  a  memorandum  seeking  an  order  costs  against  the receiver personally.   The receiver is Aaron Leslie Heath.   In addition, he seeks interest at the maximum rate pursuant to the Judicature Act 1908 of 8.4 per cent.

[3]      The claim for interest is made in respect of the application for stay where the costs sought are $8,320, inclusive of disbursements, and the costs in relation to an interlocutory injunction where the costs sought are $7,820, inclusive of disbursements.  In each case interest is sought from 31 August 2009.  In relation to costs  on  the  application  for  review,  costs,  inclusive  of  disbursements  totalling

$1,600, are sought together with interest on that sum on 3 March 2010.

[4]      By way of clarification, Mr Stewart also seeks confirmation that interest on the judgment so entered be at the rate prescribed by the Judicature Act 1908, s 87 pursuant to r 11.27.

[5]      The costs have been calculated by Mr Stewart based on Category 2 Band B

of the High Court Rules plus disbursements.

[6]      Mr Holland filed a memorandum in which he confirmed that the quantum of costs and disbursements appears to conform with the High Court Rules.   He also acknowledged that the costs are the responsibility of the second plaintiff.

[7]      The memorandum disclosed that there had been some discussion between counsel as to the position of the receiver.  I take from that that Mr Holland has, in

fact, been instructed by the receiver.  For that reason, because the receiver has been put on notice that costs were being sought against him personally, I see no need to make a specific order requiring separate notification to be given to Mr Heath.

[8]      There is, here, no reason to depart from the normal position which is that the successful party is entitled to costs.

[9]      Accordingly, judgment is entered against Aaron Leslie Heath, the receiver of

Parkbrook Holdings Limited, as follows:

a)        $16,140;

b)Interest on $16,140 from 31 August 2009, calculated at 8.4 per cent until today’s date;

c)        $1,600;

d)Interest on $1,600 calculated at 8.4 per cent from 3 March 2010 until today;

e)        This judgment shall carry interest from today until it is satisfied at the rate prescribed by or under the Judicature Act 1908, s 87.

JA Faire

Associate Judge