Land Trustees Management Limited v Dominion 114 Limited HC Auckland CIV 2008-404-6325

[2009] NZHC 2591

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2008-404-006325

BETWEEN  LAND TRUSTEES MANAGEMENT LIMITED

Plaintiff

ANDDOMINION 114 LIMITED Defendant

Hearing:         ON THE PAPERS

Appearances: M N Edwards for Defendant in Support

Judgment:      16 December 2009 at 3 pm

JUDGMENT OF ASSOCIATE JUDGE ROBINSON ON COSTS

This judgment was delivered by me on  16 December 2009 at 3 pm, Pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date…….

Solicitors:           Lovegroves, PO Box 25 066, St Heliers, Auckland

Fortune Manning, PO Box 4139, Auckland

LAND TRUSTEES MANAGEMENT LIMITED V DOMINION 114 LIMITED HC AK CIV 2008-404-006325

16 December 2009

[1]      As the plaintiff had filed a notice of discontinuance the proceedings were discontinued against the defendant. At that time I directed that the plaintiff would pay the defendants costs on a 2B basis with disbursements as fixed by the Registrar unless the defendant chose within fourteen days to seek costs on an indemnity basis. The defendant has filed a memorandum seeking costs on an indemnity basis. Costs on a 2B basis amount to $10,560 exclusive of disbursements. The defendant is claiming costs on an indemnity basis totalling $22,831.31.

[2]      In support of the application for costs on an indemnity basis counsel for the defendant refers to matters set forth in a memorandum filed in support of the defendant’s application to dismiss these proceedings for want of prosecution.

[3]      It is significant that since December 2008 the plaintiff has done virtually nothing to prosecute its claim. According to counsel for the defendant since December 2008 counsel for the plaintiff has been unable to obtain instructions of any kind from the plaintiff.

[4]      However, from January 2009 the defendant has incurred costs amounting to just over $22,800. I can see nothing in the plaintiff’s conduct that has increased the costs incurred by the defendant since December 2008. It could be argued that the plaintiff’s failure to take steps has reduced the defendant’s costs. I am however satisfied that there is no good reason advanced to justify an increase in the costs to be paid by the plaintiff. An order for costs assessed on a 2B basis is I am satisfied entirely  just.  That  order  of  course  will  include  the  costs  of  preparing  for  and attending at the hearing on 8 April 2009. That attendance could have been avoided had the plaintiff given adequate notice to the defendant of its intendance to discontinue the proceedings.

[5]      Consequently, for the reasons I have given costs are ordered against the

plaintiff to be assessed on a 2B basis with disbursements as fixed by the Registrar.

Associate Judge Robinson