Haines v Memelink

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA807/2023
[2024] NZCA 373

BETWEEN	QUENTIN STOBART HAINES First Applicant
AND	BPE TRUSTEES (NO 1) LIMITED Second Applicant
AND	QUENTIN HAINES PROPERTIES LIMITED Third Applicant
AND	HARRY MEMELINK AND CISCA FORSTER AS TRUSTEES OF THE LINK TRUST NO 1 (IN RECEIVERSHIP) Respondents

Court:	French and Mallon JJ
Counsel:	C R Carruthers KC and J P Dallas for First, Second and Third Applicants J D Haig and R O Williams for Respondents
Judgment: (On the papers)	8 August 2024 at 1.30 pm

JUDGMENT OF THE COURT
(Costs)

The applicants must pay one set of costs to the respondents in the sum of $10,182.10.

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REASONS OF THE COURT

(Given by French J)

In a judgment delivered on 20 June 2024, this Court declined the applicants’ application for an extension of time to appeal under r 29A of the Court of Appeal (Civil) Rules 2005.[1] Leave was reserved to the parties to make further submissions on costs because the respondents were seeking indemnity costs pursuant to contractual provisions in the assigned loans at issue in the proceeding.[2]
[1]Haines v Memelink [2024] NZCA 245 at [49].
[2]At [48] and [50].
The parties have now filed those submissions.
In support of their claim for indemnity costs, the respondents have provided a detailed schedule of the costs incurred. These total $10,182.10, inclusive of GST. For their part, the applicants accept that the respondents are contractually entitled to indemnity costs. Having reviewed the time sheets, counsel for the applicants also accepts the time sheets appear to be an accurate reflection of the time spent on an indemnity basis. The applicants therefore do not oppose an order for costs being made in the sum sought by the respondents.
We have satisfied ourselves that the respondents are entitled to costs on an indemnity basis and that the amount sought is reasonable.
We therefore order that the applicants pay one set of costs to the respondents in the sum of $10,182.10.

Solicitors:
JD Dallas, Wellington for First, Second and Third Applicants
Gibson Sheat, Wellington for Respondents

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the case of Haines v Memelink involved Quentin Stobart Haines, BPE Trustees (No 1) Limited, and Quentin Haines Properties Limited as applicants, and Harry Memelink and Cisca Forster as trustees of the Link Trust No 1 (in receivership) as respondents. The applicants sought an extension of time to appeal under r 29A of the Court of Appeal (Civil) Rules 2005, which was declined by the Court in a judgment on 20 June 2024. The respondents subsequently applied for indemnity costs under contractual provisions in the assigned loans that were in dispute. The applicants did not oppose the claim for indemnity costs, accepting that the respondents were entitled to such costs and that the amount sought was reasonable.

The primary legal issue before the Court was whether the respondents were entitled to indemnity costs under the contractual provisions, and if so, whether the amount claimed was reasonable. The respondents argued that they were entitled to indemnity costs based on the contractual terms, and they provided a detailed schedule of costs incurred, totaling $10,182.10, inclusive of GST. The applicants conceded that the respondents were contractually entitled to indemnity costs and did not dispute the accuracy of the time sheets. Consequently, the Court had to determine whether the respondents were entitled to indemnity costs and whether the claimed amount was reasonable.

The Court, in a judgment delivered by French J, found that the respondents were indeed entitled to indemnity costs under the contractual provisions. The Court reviewed the time sheets and found them to be an accurate reflection of the time spent on an indemnity basis. Given the applicants' acceptance of the contractual entitlement and the reasonableness of the claimed amount, the Court ordered that the applicants pay one set of costs to the respondents in the sum of $10,182.10. This decision underscores the importance of contractual terms in determining the entitlement to indemnity costs in such cases.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established