De Vries v Bartercard Exchange Limited

[2018] NZHC 2617

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV 2017-485-425

[2018] NZHC 2617

BETWEEN

ANTHONY HARRY DE VRIES

Appellant

AND

BARTERCARD EXCHANGE LIMITED

Respondent

Hearing:	On Papers
Counsel:	P R W Chisnall (Official Assignee) D G Dewar for Respondent
Judgment:	8 October 2018

COSTS JUDGMENT OF ELLIS J

[1]                  On 22 September 2011, Bartercard Exchange Ltd (Bartercard) obtained two debt judgments against Mr De Vries.1 On 5 December 2016 Judge Tompkins declined Mr De Vries application to set aside the 2011 debt judgments.2 Mr De Vries filed an appeal against the decision of Judge Tompkins in the High Court. On 26 October 2017 I issued a judgment dismissing that appeal and awarding costs to Bartercard on a 2B basis.3

[2]                  On 14 May 2018, Bartercard filed a memorandum relating to costs in a number of matters relating to Mr De Vries, requesting that a global costs order be made and that certain adjustments be made to earlier costs orders in the following three proceedings:

1      Bartercard New Zealand Ltd v De Vries DC Auckland CIV-2011-32-396, 22 September 2011 and

Bartercard New Zealand Ltd v De Vries DC Auckland CIV-2011-32-387, 22 September 2011.

2      De Vries v Bartercard New Zealand Ltd [2016] NZDC 24811.

3      De Vries v Bartercard Exchange Ltd [2017] NZHC 2625.

DE VRIES v BARTERCARD EXCHANGE LTD [2018] NZHC 2617 [8 October 2018]

(a)the District Court proceeding which concluded with Judge Tompkins’ decision of 5 December 2016;

(b)the appeal from that decision which concluded with my judgment of 26 October 2017; and

(c)the bankruptcy proceeding against Mr De Vries, which with a decision dated 30 April 2018.

[3]                  On 6 June 2018, Associate Judge Johnston issued a minute stating that these matters needed to be dealt with separately. It is on that basis that the issue of costs in the appeal has found its way back to me, this month.

Discussion

[4]                  Bartercard’s submission is that throughout the appeal Mr De Vries sought to prolong litigation in which a judgment was given against him in 2011. It submits that he has taken every possible objection, greatly prolonging time and costs before final determination of these matters.

[5]                  Counsel for Bartercard filed a chronology outlining the steps that Bartercard has been required to take and respond to.

[6]The following further points are of note:

(a)Mr De Vries has paid none of the costs awarded against him by the Courts (including the Supreme Court) since 2014.

(b)Notwithstanding my judgment of 26 October 2017 Mr De Vries continued to file further material in Court that required Bartercard to take respond and appear. I agree that further costs should be awarded for these further appearances.

(c)Mr De Vries had made extensive personal attacks on Bartercard’s lawyer, including accusing him of perjury, which have been quite unwarranted. As well, he has regularly emailed every member of counsel’s firm and made approaches to the firm’s other clients. I accept that these things have created am additional burden on Bartercard and its legal representatives and has been highly disruptive.

[7]In hindsight, a 2B costs award was generous to Mr De Vries.

[8]                  Bartercard has provided a detailed breakdown of calculations for the cost it seeks. Costs on a 2B basis up until judgment totals $10,258.00. 2B costs for the additional  appearances  required  following  the  judgment  amount  to  a  further

$6,913.00.  That gives a combined total of $17,171.  There also are disbursements of

$210.00 (sealing fee) and $220 (being the filing fees for two notices of opposition).

[9]                  Accordingly, in relation to the appeal against Judge Tompkins’ decision (CIV-2017-485-425) I order that Mr De Vries is to pay Bartercard’s costs and disbursements in the amount of $17,601.

Rebecca Ellis J