Green v Carr

[2019] NZHC 323

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2018-488-83

[2019] NZHC 323

BETWEEN

JESSIE MAREE GREEN

Appellant

AND

IAN RAY CARR

Respondent

Hearing:	(On the papers)
Counsel:	D Reeves for Respondent
Judgment:	1 March 2019

COSTS JUDGMENT OF BREWER J

This judgment was delivered by me on 1 March 2019 at 4:00 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Richard Mark (Kerikeri) for Appellant

Marsden Woods Inskip Smith (Whangarei) for Respondent

GREEN v CARR [2019] NZHC 323 [1 March 2019]

Introduction

[1]This is a costs judgment.

[2]        On 3 July 2018, Judge Harrison of the District Court entered judgment in favour of Mr Carr against Ms Green regarding a payment obligation under a settlement agreement between the parties.1 An order was made against Ms Green for payment to Mr Carr of $12,500 plus interest calculated per the terms of the agreement.

[3]        Ms Green appealed the decision. I dismissed that appeal on 19 December 2018.2

[4]        I made a provisional decision that costs on the appeal were to be calculated on a 2B basis and gave leave to the parties to file memoranda to the contrary.

Costs

[5]        The respondent filed his memorandum on 24 January 2019. The appellant has not filed a memorandum in response.

[6]        Costs are at the discretion of the Court.3 I will determine the allocation of costs without the benefit of a memorandum from the appellant.

[7]        The respondent seeks costs on a solicitor and client basis, relying on cl 14 of the Settlement Agreement which reads:

In the event of the plaintiffs failing to pay any sum payable in terms of this agreement to the first defendant, the unpaid sum shall attract interest from the date of 23 March 2009 (calculated with monthly rests) at the interest rate of 10.0% upon that sum being due, together with all costs of recovering the sum outstanding.

[8]        Clause 14 clearly allocates to the plaintiff (Ms Green) all costs incurred by the defendant (Mr Carr) in recovering outstanding sums payable under the agreement. That is what the respondent seeks.

1      Carr v Green [2018] NZDC 12906.

2      Green v Carr [2018] NZHC 3408.

3      High Court Rules, r 14.1.

[9]        The respondent advises that Judge Harrison awarded costs in the District Court on this basis.

[10]      The High Court Rules are clear that solicitor and client costs, or indemnity costs, are available when a party is entitled to them under a contract or deed.4 Contractual obligations to pay costs on such a basis are generally enforceable unless contrary to public policy.5 They are also subject to court decision as to whether the actual steps taken were within the scope of the contract, and the costs incurred were within reason.6

[11]      I am satisfied that costs should be allocated in accordance with the terms agreed to by the parties in cl 14.

[12]      The respondent has provided me with copies of the invoices of his counsel for the appeal. I have no reason to doubt that the attendances charged for were performed, and there is no protest from the appellant.

Result

[13]I award costs to the respondent on a solicitor and client basis to a total of

$16,172.82. This figure is as per the invoices attached to the respondent’s memorandum.

Brewer J

4      High Court Rules, r 14.6(4)(e).

5      ANZ Banking Group (NZ) Ltd v Gibson [1986] 1 NZLR 556 (CA) at 566.

6      Frater Williams & Co Ltd v AGC (NZ) Ltd (1994) 2 NZ Conv Cas 191, 873.