Maqbool v Patel HC Auckland CIV-2010-404-6332

[2011] NZHC 1324

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-6332

BETWEEN  JALALUDIN KHAN MAQBOOL Plaintiff

ANDJAYSHREE RATILAL PATEL Defendant

Hearing:         22 July 2011

Appearances: The Plaintiff in Person

D G Smith and J C Bassett for the Defendant

Judgment:      22 July 2011

ORAL JUDGMENT OF PETERS J

Copy to:

Mr J K Maqbool, 12 Jubilee Avenue, Onehunga, Auckland

Solicitors/Counsel

Mr D G Smith, Barrister, Auckland (email:  [email protected]) Ms J C Bassett, Barrister, Auckland (email:  [email protected])

MAQBOOL v PATEL HC AK CIV-2010-404-6332 22 July 2011

[1]      This judgment follows my judgment dated 15 July 2011 in this matter which is concerned with the issue of costs on Ms Patel’s successful application to strike out Mr Maqbool’s statement of claim and dismiss the proceeding.

[2]      I have heard from Mr Maqbool on this matter today.  Mr Maqbool submits that he always intended to withdraw or discontinue the proceedings but this was overtaken by Associate Judge Sargisson’s order on 3 March 2011 that all matters be put before Wylie J on 15 July 2011 or thereabouts.  Mr Maqbool also submits that this is not an exceptional or extraordinary matter in any way and that the usual course adopted in relationship property matters is simply to let each party bear their own costs.

[3]      Counsel for Ms Patel submits that Mr Maqbool’s statement that he always intended to discontinue the proceedings flies in the face of the submissions he made on 15 July 2011, seeking to maintain the proceedings.

[4]      I am satisfied that it was open to Mr Maqbool to discontinue his proceedings at any time.  He did not do so and that caused additional expense to Ms Patel.

[5]      I consider this is a case for increased costs pursuant to High Court Rules, r 14.6(1)(a).  In my view, Mr Maqbool has contributed unnecessarily to the expense of the proceeding by taking or pursuing steps which lack merit.

[6]      I   also   accept   counsel   for   Ms   Patel’s   submission   that   an   uplift   of

50 per cent on 2B costs is appropriate.  Counsel for Ms Patel has referred me to the Court of  Appeal’s decision in Holdfast NZ Ltd v Selleys Pty Ltd,[1]  which confirms the position.

[1] Holdfast NZ Ltd v Selleys Pty Ltd

[7]      I have reviewed the schedule of costs and disbursements provided by counsel for Ms Patel.

[8]      I make two deductions from that schedule.  The first is in respect of item (g) which  claims  the  scheduled  rate  for  a  half  day  appearance  on  15 July  2011. However, the appearance that day was to address not only this matter but others.  In my view quarter of a day is appropriate.

[9]      In addition, I am not willing to certify for second counsel as referred to in item (h) of the schedule.

[10]     The effect of these deductions is to reduce by $940.00 the costs that would be claimed on the scheduled rate to $4,418.00. A 50 per cent uplift to this amount gives total costs of $6,627.00.  Mr Maqbool is to pay costs to Ms Patel on this proceeding in that amount, together with disbursements as fixed by the Registrar.

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PETERS J