Hart v ANZ National Bank Limited

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-2583 [2012] NZHC 1705

BETWEEN BARRY JOHN HART First Plaintiff

ANDWOODHILL STUD LIMITED Second Plaintiff

ANDWOODHILL HOLDINGS LIMITED Third Plaintiff

ANDMALORY CORPORATION LIMITED FOURTH PLAINTIFF

ANDANZ NATIONAL BANK LIMITED Defendant

Date: 13 July 2012

COSTS JUDGMENT OF GILBERT J

Solicitors: N Cooke, Auckland: [email protected]
Buddle Findlay, Auckland: [email protected]

HART V ANZ HC AK CIV-2012-404-2583 [13 July 2012]

[1] The plaintiffs applied for an interim injunction to restrain the defendant, ANZ National Bank Limited (the Bank), from proceeding with a mortgagee sale of various properties. The matter was listed for hearing on 21 June 2012. The Bank’s solicitors had prepared for the hearing and filed its submissions. At the outset of the hearing, the plaintiffs’ counsel, Mr Katz QC, advised that he had no instructions and sought leave to withdraw. He advised that the plaintiffs had decided not to proceed
with their application for interim injunction and it was accordingly dismissed.[1]

[1] See minute dated 21 June 2012

[2] Ms O’Gorman, for the Bank, who had not had any prior notice of the plaintiffs’ intention not to proceed with their application, advised that the Bank intended to seek costs. I directed that any memorandum seeking costs was to be filed by 4.00 pm on 27 June 2012 and any memorandum in reply by 4.00 pm on
4 July 2012.

[3] A memorandum has been filed on behalf of the Bank seeking costs on a solicitor/client basis in reliance on the relevant provisions of the facility agreements, the guarantees and the mortgages. The amount sought is $34,689.52.

[4] No memorandum in response has been filed by or on behalf of the defendants and I therefore proceed on the basis that there is no opposition to the Bank’s claim for costs. The Bank is entitled to costs on a solicitor/client basis. I am satisfied that the costs claimed have been reasonably incurred by the Bank in resisting the plaintiffs’ application for interim injunction and, accordingly, I enter judgment for
the defendant against the plaintiffs for costs in the sum of $34,689.52.

M A Gilbert J

CaseChat Overview and Summary

In the High Court of New Zealand, Auckland Registry, the case of Hart v ANZ National Bank Limited involved an application by the plaintiffs, Barry John Hart, Woodhill Stud Limited, Woodhill Holdings Limited, and Malory Corporation Limited, for an interim injunction to prevent the defendant, ANZ National Bank Limited, from proceeding with a mortgagee sale of various properties. The application was dismissed when the plaintiffs' counsel informed the court that the plaintiffs had decided not to proceed with their application, and thus, no further arguments were presented. The Bank's solicitors had already prepared and filed their submissions for the hearing, which was scheduled for 21 June 2012.

The legal issue before the court was whether the Bank was entitled to recover its costs incurred in preparing for and participating in the hearing, despite the plaintiffs withdrawing their application. The Bank sought costs on a solicitor/client basis under the terms of the facility agreements, guarantees, and mortgages. The court had to determine if the costs claimed were reasonable and whether there was any opposition from the plaintiffs to the Bank's claim. Given that no memorandum in response was filed by the plaintiffs, the court proceeded on the assumption that there was no opposition to the Bank's claim for costs.

The court found that the Bank was entitled to costs on a solicitor/client basis. It was satisfied that the costs claimed were reasonable and had been incurred in resisting the plaintiffs' application for an interim injunction. Therefore, judgment was entered in favour of the defendant, awarding the Bank costs in the sum of $34,689.52. The court's decision was based on the lack of opposition from the plaintiffs and the reasonableness of the costs claimed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established