Glucina v Murray

[2014] NZHC 1927

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-2682 [2014] NZHC 1927

IN THE MATTER

of the Personal Property Securities Act

1999

BETWEEN

GORAN STIPE GLUCINA Applicant

AND

JOHN (JACK) LUTHER MURRAY Respondent

Hearing:	On the papers
Counsel:	MG Locke for applicant CS Henry for respondent
Judgment:	18 August 2014

JUDGMENT OF FAIRE J

This judgment was delivered by me on 18 August 2014 @ 11:30am pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Herne Bay Law, Auckland (CGN Wilson) BG Hong, Auckland

Glucina v Murray [2014] NZHC 1927 [18 August 2014]

(a)      Preventing the appointment of any receiver in relation to the vessel

MV Kotare; and

(b)      Staying the enforcement of any rights or remedies under the Personal

Property Securities Act 1999.

[2]      The applicant filed a notice of discontinuance.

[3]      On  29 May  2014,  I  issued  a  minute  in  which  I  referred  the  parties  to hcr 15.23  and  invited  the  parties  to  agree  on  costs,  failing  which  I  directed memoranda in support, opposition and reply were to be filed.  The parties have been unable to agree and have now filed the appropriate memoranda.

[4]      Where a notice of discontinuance is filed, the normal position is covered by hcr 15.23 which provides:

15.23   Costs

Unless the defendant otherwise agrees or the court otherwise orders, a plaintiff who discontinues a proceeding against a defendant must pay costs to the defendant of and incidental to the proceeding up to and including the discontinuance.

[5]      In Kroma Colour Prints Ltd v Tridonicatco NZ Ltd the Court of Appeal summarised the general approach to be applied in considering applications for costs where a notice of discontinuance has been filed.1    Importantly, the court does not speculate on the merits of a case it has not heard.  That aspect would only influence the court’s decision on costs in exceptional cases where the merits are clear.

[6]      Normally, I would proceed from here to analyse the claims for cost applying either Part 14 or, if appropriate, any contractual provision entered into by the parties.

[7]      The position, however, is not that simple.  I am advised by counsel for the applicant that the applicant obtained, in fresh proceedings, an injunction restraining

would assume the position of the applicant in the present case was secured by the order made in the later proceedings, that is CIV-2014-404-907.   In that later proceeding in relation to the injunction application, Mander J reserved costs pending the determination of the substantive proceeding.

[8]      I  am  advised  that  that  substantive  proceeding  has  since  been  adjourned pending the parties’ implementing an agreed referral of all substantive issues to arbitration.

[9]      Counsel for the plaintiff’s advice to me of that position is not disputed in the

reply memorandum from counsel for the respondent.

[10]     A further complication is that the respondent has advanced a case inviting a partial treatment of the question of costs.  The reason for advancing it on that basis is that ultimately the respondent says that he would like to rely on his entitlement to indemnity costs in reliance on a provision of the GSA.   I accept counsel for the applicant submissions that it is not possible to have partial orders on the basis that some follow-up review will take place in the future.

[11]     If I was required to fix indemnity costs in this proceeding, I would require much more information than has been made available.  I set out my reasons for this in a judgment, Crown Money Corporation Ltd v Grasmere Estate Trustco Ltd.2    In particular paragraph [14] of that judgment gives a summary of the matters that need to be covered if the court is to fix an indemnity cost figure.

[12] When I take all of these matters into account, I am of the view that this is one of those special cases where I should simply reserve costs in relation to this proceeding at this stage, but with leave reserved to the parties to bring the matter back to the court if costs are not resolved in either the arbitration proceeding, or by review pursuant to the provisions of the Lawyers & Conveyancers Act 2006.

JA Faire J