Kumar v Heartland Bank Limited

[2023] NZHC 824

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-470-000064

[2023] NZHC 824

BETWEEN

DEVENDER KUMAR

First Appellant

AND

ATTRI AND SONS

Second Appellant

AND

HEARTLAND BANK LIMITED

Respondent

Hearing:	On the papers
Counsel:	A C N Fuiava and C Richardson for Appellants A W Johnson for Respondent
Judgment:	18 April 2023

JUDGMENT OF PAUL DAVISON J

[Re: Costs]

This judgment was delivered by me on 18 April 2023 at 3.30 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Denham Bramwell, Auckland Martelli McKegg, Auckland

KUMAR v ATTRI AND SONS [2023] NZHC 824 [18 April 2023]

Introduction

[1]                 Devender Kumar (Mr Kumar) and Attri and Sons Ltd (Attri) (collectively the appellants) appealed against the decision of Judge I D R Cameron delivered in the District Court at Tauranga on 6 May 2021.1 The Judge declined an  application by  Mr Kumar for an adjournment of Heartland Bank Ltd’s (the Bank) summary judgment application, and entered summary judgment against the appellants in the sum of

$66,723.85 together with interest and costs being the amount outstanding of a loan facility borrowed by Attri, and which Mr Kumar had guaranteed.

[2]                 By judgment dated 23 February 2023 I allowed the appellants’ appeal.2 I found that the Judge erred in declining the appellants’ application for an adjournment of the Bank’s summary judgment application. Further, I found that the Judge erred in finding that the appellants had no arguable defence to the Bank’s claim, and also in his decision to enter summary judgment in favour of the Bank against both appellants.3 Accordingly, I quashed the Judge’s decision and remitted the proceeding back to the District Court at Tauranga.4 I observed that the appellants, having succeeded, were entitled to an award of costs.5

Discussion

[3]The parties have been able to agree on costs.

[4]                 In their joint memorandum dated 13 March 2023, the parties have noted that 2B scale costs for this proceeding would total $15,057. However, Mr Kumar was in receipt of a grant of legal aid for the purposes of this appeal. The grant of legal aid provided was for $10,704.94. The parties therefore agree that this is the appropriate costs sum.

1      Heartland Bank v Attri and Sons Ltd [2021] NZDC 8364.

2      Kumar v Heartland Bank Ltd [2023] NZHC 283.

3 At [70].

4 At [75].

5 At [76].

[5]                 The parties have correctly identified that the award of costs cannot exceed the actual costs incurred by the party claiming costs.6

[6]                 A successful legally aided party is entitled to an award of costs for the full sum of the legal aid grant, provided it is the same or less than the appropriate scale costs.7 In this case the legal aid sum claimed is less than the appropriate costs award calculated on a 2B basis. I accordingly make an award of costs for the amount sought.

Result

[7]                 I make an order that the respondent is to pay costs to the appellants (jointly) in the sum of $10,704.94.

Paul Davison J

6      High Court Rules 2016, r 14.2(f).

7      Body Corporate No 207715 v McNish [2016] NZHC 475 at [4].