Greenbaum v Lockwood

[2021] NZHC 3397

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2019-419-000273

[2021] NZHC 3397

UNDER

Insolvency Act 2006

IN THE MATTER OF

The bankruptcy of BARBARA KAY LOCKWOOD

BETWEEN

ADAM RAPHAEL GREENBAUM

Judgment Creditor

AND

BARBARA KAY LOCKWOOD

Judgment Debtor

Hearing:

On the papers

Counsel:

R G Ewen for Judgment Creditor

S R J Hamilton for Judgement Debtor

Judgment:

13 December 2021

COSTS JUDGEMENT OF ASSOCIATE JUDGE P J ANDREW

This judgment was delivered by Associate Judge Andrew on 13 December 2021 at 2.30 pm

pursuant to r 11.5 of the High Court Rules Registrar / Deputy Registrar Date……………………….

GREENBAUM v LOCKWOOD [2021] NZHC 3397 [13 December 2021]

Introduction

[1]                  These are bankruptcy proceedings. On 10 August 2021, the judgment creditor, Mr Greenbaum, filed a notice of withdrawal.

[2]The parties have filed memoranda addressing the question of costs.

[3]This judgment contains my decision on costs.

Background

[4]                  The parties were formerly married. They met in 2000 when the judgment debtor was living and working in the United Kingdom, and began living together later that year. They married in December 2006. They returned to live in New Zealand in 2009, and their relationship ended when they separated on 25 May 2021.

[5]                  Following their separation, the parties have been involved in ongoing litigation in New Zealand under the Property (Relationships) Act 1976. Those proceedings were the subject of a judgment given by Judge Otene in the Family Court on 17 May 2008. That judgment, substantially upheld on appeal, is the basis for the judgment debt.

[6]                  A more comprehensive discussion of the background facts is set out in the judgment of Associate Judge Smith of 17 January 2020.1

Decision

[7]                  The starting point is r 15.23 of the High Court Rules. That Rule provides that unless the defendant otherwise agrees or the Court otherwise orders, a plaintiff who discontinue a proceeding against a defendant must pay costs to the defendant.

[8]                  It is clear that the r 15.22 presumption obviates any requirement for the defendant to demonstrate that the plaintiff acted unreasonably in commencing and then discontinuing the proceedings. It is also clear from the authorities that the Court will not generally consider the merits of the respective cases unless they are so obvious that they should influence the costs outcome.

1      Greenbaum v Lockwood [2020] NZHC 18.

[9]                  Mr Greenbaum contended that there should be no award of costs. Mr Ewen, on his behalf, contended that Mr Greenbaum had exercised the humane and generous step to withdraw the proceedings for the benefit of and for the future of the children. However, I am in no position to assess the merits of that contention; the merits of the respective cases are not so obvious that there should be no costs award.

[10]              I find that this is an appropriate case to apply the presumption in r 15.23 and to order that the judgment creditor pay at least some costs to the judgment debtor. The critical issue to determine is the calculation and thus the quantum of any costs award.

[11]              The judgment debtor has sought 2B costs in the total sum of $13,145 together with disbursements of $6,694.50 (a total sum of $19,839.50).

[12]              In my view the total amount of costs sought is excessive and as a matter of discretion a more modest amount should be awarded. Ultimately, the defended bankruptcy proceeding did not proceed and the judgment debt was of course based on a decision of this Court, following an appeal from the Family Court.

[13]              As a matter of discretion, and weighing all the circumstances, I find that the judgment creditor should pay costs to the judgment debtor on a 2B basis in the total sum of $3,541 calculated as follows:

Steps	Date		Description	Time	Costs
22	14 February 2020		Interlocutory application to halt bankruptcy	0.6 days	$1,434.00
12	2 2020	March	Appearance at mentions hearing	0.2 days	$ 478.00
11	15 May 2020		Memorandum of counsel seeking extension of halt (with affidavit of Eleanor Feeney in support)	0.4 days	$ 956.00
12	2 June 2020		Appearance at mentions hearing	0.2 days	$ 478.00
13	30		Appearance at case management conference	0.3	$ 717.00
September		days
2020
29	Undated		Sealing judgment	0.2 days	$ 478.00
Total:	$4,541.00
Less: (Costs awarded in favour of judgment creditor by Judge Smith on 18 February 2020 which judgment debtor accepts should be deducted)	$1,000.00
Final total:	$3,541.00

[14]I make no allowance for the other items claimed by the judgment debtor.

[15]              As to disbursements, I accept that the Max Lewis fee of $5,621.52 can properly be claimed as a disbursement. It was obtained not just to defend the halt proceeding but the substantive bankruptcy adjudication proceeding. I do, however, accept that the urgent courier fee of $462.98 should not be allowed.

[16]              That means I accept that the total sum of disbursements to be paid by the judgment creditor is $6,231.52.

Result

[17]              I order that the judgment creditor, Mr Greenbaum, is to pay to the judgment debtor, Ms Lockwood, costs on a 2B basis as calculated in this judgment, namely in the  total  sum  of  $3,541.00.  Mr  Greenbaum  is  also  to  pay   disbursements  to Ms Lockwood in the total sum of $6,231.52. That gives a total award of $9,772.52.

Associate Judge P J Andrew