Forest Trustee Limited v Auckland Council

[2014] NZHC 301

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-4687 [2014] NZHC 301

UNDER  Sections 289 and 290 of the Companies

Act 1993

IN THE MATTER OF       an application to set aside a statutory demand

BETWEEN  FOREST TRUSTEE LIMITED Applicant

ANDAUCKLAND COUNCIL Respondent

Hearing:                   4 February 2014

Appearances:          Mr Chambers for Applicant Mr J Hilario for Respondent (on papers)

Judgment:                27 February 2014

JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE [on Costs]

This judgment was delivered by me on

27 February 2014 at 4 pm, pursuant to

Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

FOREST TRUSTEE LIMITED v AUCKLAND COUNCIL [2014] NZHC 301 [27 February 2014]

[1]      I thank counsel for their memoranda dated 14 February 2014 (applicant) and

20  February  2014  (respondent).    I  consider  that  the  applicant  is  correct  in  the position it takes that pursuant to r 14.2(a) the respondent as unsuccessful party ought to pay the costs of this proceeding.

[2]      The parties are agreed that if a costs order is made it ought to be made pursuant to Category 2B.

[3]      I consider that there are no circumstances here which would justify departing from r 14.2(a) HCR.  I accept that in other cases Judges have exercised a discretion which has resulted in a different outcome so far as costs are concerned but in my view this particular case is not one that calls for departure from r 14.2(a) HCR.   I also consider that unless there are cogent and genuinely substantial grounds for departing from r 14.2(a) HCR, the Court ought not to do so.

[4]      A key matter in the fixing of costs in this case is the fact that the applicant was apparently self-represented when filing documents.  I make no comment on the propriety of its having done so but do note that in any event there is no entitlement for costs in circumstances where counsel were not retained.   I therefore agree that Mr Hilario is correct when proposing that in place of the two allocated days under costs heading 37 there should be substituted 0.7 days for the affidavit in reply which counsel apparently drew.  I also agree that the filing memorandum for case mentions hearing (costs category 39) should be 0.2 of a day instead of 0.4.   I assume that counsel are able to agree what the resulting 2B figure for costs and disbursements will total after making the adjustments just mentioned.  If they need to they can seek further directions.  My intent therefore is to award costs on a 2B basis subject to the

alterations set out in Mr Hilario’s memorandum.

J.P. Doogue

Associate Judge