Faloon v Public Trust

[2012] NZHC 1307

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV-2010-470-000052 [2012] NZHC 1307

UNDER  the Trustee Act 1956

IN THE MATTER OF     the Estate of THOMAS JOHN FALOON BETWEEN  CLARENCE JOHN FALOON

First Plaintiff

ANDRUTH ENID FALOON Second Plaintiff

ANDTHREE TRUSTEES IN THE 1977-YEAR DIVERSION OF THE KAWAU STREAM TRUST

Third Applicant

ANDPUBLIC TRUST Respondent

Hearing:         11 June 2012

Appearances: C J Faloon in Person for Plaintiffs

H G P Stokes for Defendant (attendance excused) Judgment: 11 June 2012

JUDGMENT OF VENNING J

This judgment was delivered by me on 11 June 2012 at 3.00 pm, pursuant to Rule 11.5 of the High

Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Public Trust, Hamilton

Copy to:            C J Faloon, 43B Twentieth Avenue, Tauranga

FALOON V PUBLIC TRUST HC TAU CIV-2010-470-000052 [11 June 2012]

Introduction

[1]      The applicant Mr Faloon applies to the Court for an order that the costs order made by Duffy J be corrected.

Background

[2]      In a judgment delivered on 15 August 2011 Duffy J confirmed an Associate Judge’s decision to strike out the proceedings brought by the plaintiffs against the Public Trust.

[3]      Duffy J noted that the Public Trust sought indemnity costs against Mr Faloon. The Judge called for submissions from the Public Trust if that claim for indemnity costs was to be pursued.

[4]      On 1 September 2011 Duffy J delivered a judgment fixing costs.  She noted that the Public Trust no longer pursued the issue of indemnity costs, and instead sought costs on a scale 2B basis.  The Judge confirmed costs on that basis and fixed them at $7,144 together with disbursements for $481.  That judgment issued on 1

September 2011.

[5]      Public Trust then presented the costs order for sealing.  Unfortunately in error it was dated 15 August 2011 rather than 1 September 2011.

[6]      That provides the basis for Mr Faloon’s further application to this Court.

Decision

[7]      The reference on the sealed costs order to 15 August 2011 is clearly an administrative error made by the Registrar.  Rule 11.10 applies.  The incorrect date is a clerical mistake arising from an accidental slip.  It is of no moment.  I order that the costs order be resealed and dated with the proper date of 1 September 2011.

[8]      That is sufficient to dispose of the application.

[9]      Mr Faloon sought to raise other issues before the Court.  He first sought to revisit the issue of costs, submitting that none of the parties were heard in relation to an order for costs in breach of r 7.43 of the High Court Rules.   He also takes the point that the heading of the order does not comply with the requirements of r 5.12 as it differs from the heading on the statement of claim.

[10]     There is nothing in any of the points Mr Faloon seeks to make about the costs order.  The form of the order follows the summarised form of intituling used by the Judge in delivering both the substantive judgment and the costs judgment.

[11]     Rule 7.43 has no application in this case.  That rule applies to interlocutory orders made during the course of substantive proceedings.   Costs orders following determination of the proceedings, as on the strike out or review of a strike out are provided for in Part 14 of the Rules.  Rule 14.2 confirms the general principle that a party who fails should pay costs to the successful party and the following provisions of r 14.2 confirm that costs are generally to be fixed in accordance with scale which is what occurred in this case.  The issue of costs was clearly before the Judge at the conclusion of the hearing before her.   It would have been open for the Judge to simply fix costs at the conclusion of her judgment on a 2B basis having dismissed the plaintiff’s application for review.

[12]     The matter was only put off because Public Trust indicated indemnity costs ought to be sought.  When that was no longer pursued, there was no need to hear from the parties before fixing costs on a 2B basis.

[13]     Mr Faloon also sought to rely on r 14.8, which again refers to the review of costs awarded during the interlocutory steps of a proceeding.

[14]     Further, and in any event, there is no basis to review costs in this case.  The costs award was to scale.   Mr Faloon had failed in his application to review the Associate Judge’s decision.  Public Trust was entitled to costs.

[15]     During the course of his submissions Mr Faloon also sought to revisit the substantive merits  of the proceedings  which  the Court  has  struck  out.   That  is entirely inappropriate.   The proceedings have been struck out as disclosing no reasonable cause of action and on the further grounds they are vexatious.

Result

[16]     There will be an order directing the Registrar to reseal the costs order.   I

make no order for costs on this particular application.

[17]     The Registrar is directed not to accept any further papers from Mr Faloon on this file.

Venning J