Fistonich v Halse

[2021] NZHC 1729

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-002187

[2021] NZHC 1729

BETWEEN

IAN GEORGE FISTONICH

First Plaintiff

AND

IAN GEORGE FISTONICH and ZLATO

TRUST HOLDINGS LIMITED as trustees of the ZLATO TRUST

Second Plaintiffs

AND

GRAEME WILLIAM HALSE

First Defendant

AND

PREMIER LEGAL FINANCE LIMITED PARTNERSHIP

Second Defendant

AND

PREMIER LEGAL FINANCIAL GP LIMITED

Third Defendant

Hearing:	On the papers
Counsel:	I G Fistonich, Plaintiff, self-represented D W Grove for Defendants
Judgment:	9 July 2021

COSTS JUDGMENT OF ASSOCIATE JUDGE PAULSEN

FISTONICH v HALSE Costs Judgment [2021] NZHC 1729 [9 July 2021]

This judgment was delivered by me on 9 July 2021 at 4.30 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

[1]    On 16 June 2021 I issued a judgment granting the defendants security for costs. I reserved costs on that application. I also reserved leave to file memoranda if agreement could not be reached between the parties. There was no agreement reached. I have now received memoranda from Mr Grove for the defendants and Mr Fistonich.

[2]    Mr Grove submits the defendants are entitled to costs on a 2B basis and disbursements.

[3]    In reply, Mr Fistonich submits the defendants have already had “a win” and costs should lie where they fall. Alternatively, he asks that costs be awarded on a reduced basis and be paid over time.

[4]    The principles are clear. All matters of costs are discretionary. The discretion must be exercised on a principled basis. The determination of costs, so far as possible, should be both predictable and expeditious.1 The party who has lost should pay the costs of the party that has won unless there are exceptional reasons to the contrary.2 Costs on an opposed interlocutory application should, unless there are special reasons, be fixed when the application is determined and become payable when they are fixed.3

[5]    The defendants were clearly the winner on their application, as is acknowledged by Mr Fistonich. There are no reasons why they should not be entitled to costs.

[6]    Mr Finstonich’s financial circumstances are not a ground for making a reduced award of costs. Further, I see no reason to depart from the ordinary rule that costs awards are to be payable when fixed.

[7]    The defendants have claimed costs on a 2B basis. That is entirely regular and appropriate in this case, save for one matter. The submissions presented by Mr Grove were commendably brief, reflecting the fact the plaintiffs’ position was not strong. I

1      High Court Rules 2016, r 14.2(1)(g).

2      Rule 14.2(1)(a) and Shirley v Wairarapa District Health Board [2006] NZSC 63, [2006] 2 NZLR 523 at [19].

3      Rule 14.8(1)(a) and (b).

consider that costs should be on a 2B basis, save in relation to the preparation of written submissions. In respect of that step, costs are awarded on a 2A basis.

Result

[8]    The defendants are awarded costs on the application for security for costs in an amount of $5,160.50 including disbursements.

O G Paulsen Associate Judge

Solicitors:

Vodanovich Law Ltd, Auckland D W Grove, Auckland

Copy to:

I Fistonich

Case Officer: Teresa Taukolo