Licenced Assets Limited v Patel HC Wellington CIV-2009-485-1878

[2011] NZHC 7

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2009-485-1878

BETWEEN  LICENCED ASSETS LIMITED Plaintiff

ANDRATILAL BHIKHABHAI PATEL AND NAGINBHAI GHELABHAI PATEL Defendants

Judgment:      26 January 2011 at 3.00 pm

JUDGMENT AS TO COSTS OF ASSOCIATE JUDGE D.I. GENDALL

This judgment was delivered by Associate Judge Gendall on 26 January 2011 at

3.00 pm under r 11.5 of the High Court Rules.

Solicitors:           Wells & Co, Solicitors, PO Box 28390, Remuera, Auckland

Guy & Toby Manktelow, Solicitors, PO Box 31-265, Lower Hutt, Wellington

LICENCED ASSETS LIMITED V RATILAL BHIKHABHAI PATEL AND NAGINBHAI GHELABHAI PATEL HC WN CIV-2009-485-1878  26 January 2011

[1]      This was a proceeding for relief against forfeiture of a lease.  The plaintiff is presently in receivership.  On 16 November 2010, an order was made striking out the plaintiff’s proceeding because the plaintiff had failed to comply with an order for security  for  costs  dated  2  November  2010.    There  was  no  appearance  for  the plaintiff.  Costs were reserved.

[2]      The defendants have filed a memorandum as to costs, seeking an order for costs against the plaintiff on a 2B basis.  The plaintiff had not filed a memorandum.

[3]      The defendants submit that, although they will rank as an unsecured creditor and  the  plaintiff  apparently  has  no  funds  left  with  which  to  repay  unsecured creditors, there is no reason why costs should not follow the event here.   I agree. The plaintiff’s proceeding was struck out, and the defendants should therefore be entitled to costs as the successful party in the proceeding.

[4]      Accordingly,   the   defendants   are   awarded   costs   on   a   2B   basis   plus disbursements as fixed by the Registrar.  An order to this effect is now made.

‘Associate Judge D.I. Gendall’