Gillette v Green

[2018] NZHC 1119

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CIV-2017-442-42

[2018] NZHC 1119

BETWEEN

NATHAN DANIEL GILLETTE

Plaintiff

AND

THOMAS GREEN

First Defendant

ROOFPOWER INSTALLATION LIMITED

Second Defendant

Counsel:	A R Goodison for first and second defendants
Judgment:	18 May 2018

COSTS JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

[On the papers]

[1]                 On 11 April 2018 I issued a judgment as to costs in this proceeding. In doing so, I understood that I was dealing with all costs associated with the plaintiff’s attempts to enforce costs awards in his favour, that is to say his application for a freezing order which was dealt with by Grice J in a judgment dated 14 March 2018 and its application for a charging order which was dealt with by Churchman J  in a judgment dated     14 March 2018.

[2]                 It has now been drawn to my attention that the defendants have made separate applications for costs in relation to the freezing order proceeding and the charging order proceeding.

[3]It was the latter that I dealt with in my judgment of 11 April 2018.

GILLETTE v GREEN [2018] NZHC 1118 [18 May 2018]

[4]                 There are fairly obvious reasons for the confusion. Without going into any detail, the fact that the defendant’s solicitors instructed counsel in relation to the charging order proceeding, but dealt with the freezing order proceeding themselves, the significant delay between the disposal of the freezing order proceeding and the defendants’ application for costs (apparently explained by the fact that the first defendant was applying for legal aid) and the terms of counsel’s memorandum in support of the defendants’ application for costs in the charging order proceeding all contributed.

[5]                 In any event, I now have before me, and must deal with, the defendants’ application for costs in the freezing order proceeding. In Ms Goodison’s memorandum of 27 April 2018 she says that the application for a freezing order was unsuccessful. As Mr Gillette says in his memorandum in response dated 17 May 2018, that is not a full description of the outcome in the freezing order proceeding. In fact Grice J indicated that she was prepared to make a freezing order if the plaintiff was able to give the necessary assurances in relation to aspects of the matter. It is true that the plaintiff has never done so, and that no freezing order was ultimately made.

[6]                 Having had the benefit, in the meantime, of dealing with yet another interlocutory step in this proceeding concerning discovery (refer to my judgment dated 14 May 2018 in which I made certain orders sought by the plaintiff against the defendants and another party in relation to discovery), my judgment is that it would be inappropriate to make a further costs award against the plaintiff in relation to the freezing order proceeding.

[7]                 In part at least this is in recognition of the fact that the plaintiff’s application for a freezing order was not entirely groundless. But it is a recognition also of the view I reached during the course of dealing with the plaintiff’s application for discovery (which was partly successful) that, in the end, this claim for $138,000 is completely uneconomic and cries out for intense case management. With that in mind, at the conclusion of my judgment dated 14 May 2018, I directed that a full case management conference be arranged in the near future, when I intend to schedule the matter for trial as soon as possible.

[8]                 As part of the exercise of trying to manage this litigation as efficiently as possible, my view is that the interlocutory costs of the plaintiff’s application for a freezing order should be treated as costs in the cause and dealt with at the conclusion of the litigation.

[9]                 If the plaintiff is considering an application for costs in relation to his partially successful application for discovery, it may assist him to know that my preliminary view is that the same considerations would preclude a costs order in his favour in relation to that application.

[10]              The defendants’ application for the costs in connection with the plaintiff’s application for a freezing order is declined. The costs associated with that application are to be costs in the cause, and brought to account at the conclusion of the proceeding.

Associate Judge Johnston

Solicitors:
Zindels, Nelson for first and second defendants