Dateline Imports Ltd v Bennett

[2015] NZHC 874

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2015-404-261 [2015] NZHC 874

BETWEEN

DATELINE IMPORTS LTD AND ORS

Plaintiffs

AND

ROBIN LESLIE BENNETT AND ORS Defendants

Hearing:	(on the papers)
Counsel:	M Kirkland for Plaintiffs A Nicholls for Defendants
Judgment:	30 April 2015

JUDGMENT OF HEATH J

This judgment was delivered by me on 30 April 2015 at 2.00pm pursuant to Rule

11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:
Kirkland Morrison O’Callahan & Ho, Auckland

Edwards Clark Dickie, Auckland

DATELINE IMPORTS LTD AND ORS v BENNETT AND ORS [2015] NZHC 874 [30 April 2015]

[1]      The   plaintiffs’  application   for   summary   judgment   was   called   before Venning J, on 31 March 2015.  Counsel advised the Judge that the application had been settled “to the extent that the settlement sum sought has … been paid”.  The only live  issue  was  costs.    Memoranda  have  now  been  exchanged  in  terms  of Venning J’s directions.   They have been referred to me, as Duty Judge, for determination on the papers.

[2]      The plaintiffs’ position is that because the amount claimed was, ultimately, paid, they should be regarded as the successful parties and entitled to costs.  Costs ($5572) are sought on a 2B basis together with disbursements ($1607).  That makes a total claim of $7179.

[3]      Counsel for the defendants submits that the proceedings were unnecessary and did not “contribute to receipt of the funds, which were paid as soon as possible and ahead of the hearing date”.  Thus, it is contended, the plaintiffs cannot be said to have “succeeded” on the application.

[4]      As a result of an agreement made on 6 June 2014, the defendants agreed to transfer, to the plaintiffs, investment funds held on term deposit by Generali International Ltd, a company based in the Channel Islands.   Counsel for the defendants contends that the plaintiffs wrongly assumed that the investment funds in issue matured in October 2014, when they were due at the end of November 2014. Steps were taken, they assert, to release funds at that time. That required liaison with a broker who, due to unavailability and unexpected illness, was unable to assist in the release of funds until late December 2014.

[5]      The proceeding was filed on 12 February 2015.  The amount owing to the plaintiffs was paid on 4 March 2015.

[6]      Having regard to the competing positions, I consider that the plaintiffs are entitled to costs on a 2B basis.   The debt was no paid for nearly a month after proceedings were issued.   In my view, the plaintiffs should be treated in the same way as one who obtains an undefended summary judgment order.  Such a plaintiff would ordinarily receive costs on a 2B basis.

[7]      Costs are awarded in favour of the plaintiffs on a global basis in the sum of

$7179, in terms of the calculation set out at para [2] above.  The defendants shall be jointly and severally liable to meet those costs.

[8]      I thank counsel for their assistance.

P R Heath J

Delivered at 2.00pm on 30 April 2015