FM Custodians Limited v Kooiman

[2020] NZHC 509

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2017-485-671

[2020] NZHC 509

UNDER

the Insolvency Act 2006

IN THE MATTER

of the bankruptcy of Michael Edwin Kooiman

BETWEEN

FM CUSTODIANS LIMITED

Judgment Creditor

AND

MICHAEL EDWIN KOOIMAN

Judgment Debtor

Appearances:	S Munro and A Davidson for judgment creditor J Dallas for judgment debtor
Judgment:	13 March 2020

COSTS JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

[On the papers]

[1]    The judgment creditor, FM Custodians Ltd, seeks costs in relation to the final determination of this proceeding. The substantive hearing involved FM Custodians’ application for an order bankrupting the judgment debtor, Mr Kooiman. This was dealt with in my judgment of 13 November 2019. FM Custodians was the successful party. In my judgment I made an order bankrupting Mr Kooiman. I reserved costs, in the expectation that these could be resolved by counsel. Regrettably, that has not happened.

[2]    FM Custodians seeks indemnity costs. The basis for its claim is that, under the contractual arrangements between the parties which were at the heart of the proceeding, FM Custodians is entitled to recover indemnity costs incurred in the course of enforcement proceedings.

FM CUSTODIANS LIMITED v KOOIMAN [2020] NZHC 509 [13 March 2020]

[3]    In a comprehensive memorandum dated 26 February 2020, Mr Munro and Ms Davidson set out the costs and disbursements claimed. Together, these total

$109,427.12. The lion’s share of this sum is of course the company’s legal costs. The disbursements claimed total $6,405.85.

[4]    Mr Kooiman’s solicitor, Mr Dallas, has responded to FM Custodians’ memorandum by email dated 10 March 2020 in these terms:

I have reviewed the Costs Memorandum of Counsel for the Applicant, and I have sought my client’s instructions in relation to the matter.

I am instructed to not file a memorandum in reply other than to say (by this email) that his action should not be read as an acceptance by my client of the fees [sic] notes referred to in Counsel for the Applicant’s Memorandum, but my client does accept that indemnity costs are a contractual obligation.

[5]Thus, FM Custodians’ application is effectively unopposed.

[6]Nevertheless, it is appropriate for the Court to review the costs claimed.

[7]    Mr Munro and Ms Davidson set out in considerable detail the work carried out by FM Custodians’ solicitors and counsel throughout and provide information as to the basis for charging. The work has been charged for on a time and attendance basis, and the hourly rates appear to me to be reasonable. Standing back from the matter and assessing the amount of work involved in dealing with the comparatively complex issues involved, which necessitated careful analysis of the loan and security documentation, I am satisfied that the costs FM Custodians incurred with its solicitors and counsel are reasonable. I have also reviewed the disbursements and all disbursements claimed appear to me to properly claimable.

[8]    Accordingly, I order that FM Custodians is entitled to costs and disbursements in the total sum of $109,427.12.

[9]    I record that whilst a supporting creditor participated in the hearing, no claim has been made by that party in relation to costs. This costs judgment in favour of

FM Custodians does not preclude such a claim being made.

Associate Judge Johnston

Solicitors:

Anderson Lloyd, Christchurch for judgment creditor