Ensom v Downtown House (no.2) Limited

[2020] NZCA 51

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA202/2019
 [2020] NZCA 51

BETWEEN	MARK ROBERT ENSOM Appellant
AND	DOWNTOWN HOUSE (No. 2) LIMITED Respondent

Counsel:	A S Ross QC and P C Murray for Appellant W M Irving and J C Suyker for Respondent
Judgment: (On the papers)	12 March 2020 at 10.30 am

COSTS JUDGMENT OF MILLER J

AThe Registrar is to pay $478 to the respondent from the appellant’s security for costs.

B        The balance of the security is to be paid to the Official Assignee.

____________________________________________________________________

REASONS

1. Mr Ensom is a bankrupt whose appeal to this Court has been abandoned, leaving the Registrar holding $6,600 that he paid as security for costs.

2. Costs payable according to scale are minimal, since the respondent did no more than file a notice of appearance.  It asks however for costs on an indemnity basis (for solicitor-client costs), citing a deed of guarantee.  The amount payable on that basis would be $1,583.  It goes further and asks that the balance of the security be paid to it in partial satisfaction of a judgment debt.

3. I accept that the Court has discretionary jurisdiction to award costs on an indemnity basis where a contract so provides,[1] and further to order that costs be deducted from security held.[2]

   [1]Court of Appeal (Civil) Rules 2005, s 53(3)€.

   [2]Krukziener v Commissioner of Inland Revenue HC Auckland, CIV-2010-404-728, 21 June 2011.

4. It is exceedingly unlikely, however, that the Court would do so in circumstances where the payment would amount to a preference for the judgment creditor.  That is plainly the case here, at least in relation to any amount exceeding $1,583.

5. So far as the actual solicitor-client costs of the appeal are concerned, I do not consider the sum claimed reasonable for a notice of appearance.

6. The Court of Appeal (Civil) Rules 2005 do not fix a sum payable for this step.  By analogy with the High Court Rules 2016, 0.2 days is appropriate.  Under this Court’s rules for a standard appeal, that comes to $478.

7. The Registrar is to pay $478 to the respondent.  The Registrar is to advise the Official Assignee that she is holding the balance and is to pay it to the Official Assignee on request.

Solicitors:
Atmore & Co, Auckland for Appellant
Russell McVeagh, Auckland for Respondent