Fairburn v S L Mark Limited HC Rot CIV 2007-463-932

[2008] NZHC 2359

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CIV 2007-463-932

IN THE MATTER OF     Section 145 and 145A of the Land Transfer

Act 1952

BETWEEN  RICHARD FAIRBURN Plaintiff

ANDS L MARK LIMITED Defendant

Hearing:         22 February 2008

Appearances: (on papers)

Judgment:      30 May 2008. at 11 a.m.

JUDGMENT OF ASSOCIATE JUDGE DOOGUE [on Costs]

This judgment was delivered by me on

30.05.08 at 11 a.m., pursuant to

Rule 540(4) of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Counsel:

Ms S Opai, Barrister, P O Box 2193, Taupö

Mr E Hudson, Barrister, P O Box 19252, Hamilton

FAIRBURN V S L MARK LIMITED HC ROT CIV 2007-463-932  30 May 2008

[1]      In   my  judgment   22   February  2008,   after   dismissing  the   applicant’s application for order that caveat not lapse, I invited the parties to confer on the matter of costs and if they were unable to agree with that issue they were then requested to file memoranda.   I have now received a memorandum from Mr E Hudson for the respondent.   No memorandum has been received from Ms Opai. Adequate time has been allowed for the parties to agree costs or file memoranda.  I intend to now fix costs given that there has been no agreement.

[2]      In my view this is a case which is governed by Rule 47(a) of the Rules:

[47]     Principles applying to determination of costs

The following general principles apply to the determination of costs: (a) The  party  who   fails   with   respect   to   a   proceeding   or   an

interlocutory     application  should  pay  costs  to  the  party  who

succeeds:

[3]      I also agree with Mr Hudson’s proposal as to detailed costs, which in total come to $6,240.  These are based upon category 2B in each case.  That is the correct categorisation in my view.   Accordingly I order that the plaintiff is to pay the respondent costs in the sum of $6,240.  The memorandum from counsel does not say anything about disbursements.  There may be none which the defendant is able to claim.   Against the eventuality that there may be some claimable disbursements I direct that the Registrar is to determine what are reasonable disbursements to be paid

by the plaintiff.

J.P. Doogue

Associate Judge