K-Auto Trading (NZ) Limited v McGuire HC Auckland CIV 2006-404-006784

[2008] NZHC 2501

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2006-404-006784

BETWEEN  K-AUTO TRADING (NZ) LIMITED Plaintiff

ANDJEREMY MCGUIRE Defendant

Hearing:         4 February 2008

Appearances: L Herzog for Plaintiff

B R Webster for Defendant

Judgment:      13 August 2008 at 4 pm

JUDGMENT OF ASSOCIATE JUDGE ROBINSON

This judgment was delivered by me on 13 August 2008 at 4 pm, Pursuant to Rule 540(4) of the High Court Rules

Registrar/Deputy Registrar

Date……

Solicitors/Counsel:           Nigel Faigan, PO Box 2597, Auckland

Morgan Coakle, PO Box 114, Shortland Street, Auckland

Jeremy McGuire, PO Box 14 461, Wellington

K-AUTO TRADING (NZ) LIMITED V JEREMY MCGUIRE HC AK CIV 2006-404-006784  13 August 2008

[1]      On 11 February 2008 for the reasons set forth in the judgment delivered at that time,  I dismissed the plaintiff’s application to vary and discharge  an order requiring the plaintiff to provide staged security for the defendant’s costs. On dismissing the application, I made directions requiring the parties to file submissions on the issue of costs in respect of that application. The defendant’s counsel has filed submissions.  No  submissions  have  been  filed  by  the  plaintiff  within  the  time specified in the directions I made on 11 February 2008.

[2]      As the defendant has been successful, the defendant is entitled to costs. Those costs assessed on a category 2B basis amount to $2,720.

[3]      Counsel for the defendant however, seeks costs on a full indemnity basis which total $3,646.69. To justify costs on a full indemnity basis, there must be truly exceptional circumstances similar to those found to exist in Hedley v Kiwi Co- operative Dairies Ltd 16 PRNZ 694. Such circumstances do not exist in this case. Counsel for the defendant points out that the plaintiff did not comply with directions made for filing of synopsis of argument and casebook as required by r 251(a). However, much of the preparation with regard to this application involved issues that counsel must have considered when applying for the order for security for costs which counsel for the plaintiff sought to vary. The application involved a clearly defined issue. I doubt whether any of the matters raised by the plaintiff at the hearing of this application took the defendant by surprise.

[4]      In the circumstances therefore I order that the plaintiff pay the defendant’s costs in connection with the application to vary the order for security for costs

assessed on a 2B basis with disbursements as fixed by the registrar.

Associate Judge Robinson