Marr v Parkin

[2014] NZHC 1729

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-5102 [2014] NZHC 1729

UNDER

the Declaratory Judgments Act 1908

BETWEEN

BERNADETTE MAKUINI MARR First Plaintiff

KEITH CHARLES BLUETT MARR and

CHARLOTTE RUBY MARR Second Plaintiffs

AND

BARRY IAN PARKIN Defendant

On the papers
Counsel:	EJ Werry for plaintiffs KT Glover for defendant
Judgment:	23 July 2014

JUDGMENT OF FAIRE J

This judgment was delivered by me on 23 July 2014 at 4:45pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Atmore Lawyers, Auckland

Graham Jones Law, Auckland

Marr v Parkin [2014] NZHC 1729 [23 July 2014]

[1]      The defendant filed an application for security for costs on 7 May 2014.

[2]      In a joint memorandum dated 14 May 2014 counsel for the plaintiffs and defendant advised the court that they had agreed, in relation to the application for security for costs, on a timetable so that the application moved “towards a fixture”. The memorandum set a time for the filing of the notice of opposition as 26 May

2014, and the filing of reply affidavits by 2 June 2014 and an allocation of a ½ day fixture after 10 June 2014.

[3]      Based on that memorandum, orders by consent were made.

[4]      On 6 June 2014, counsel filed a second joint memorandum in which they advised, in relation to the security for costs application as follows:

2.The defendant’s application for security for costs was based on the plaintiffs having neither substantial income nor assets.

3.The  plaintiffs  have  since  indicated  that  their  mother,  Bernadette Makuini Marr, will be joining the proceeding as a plaintiff when an amended statement of claim is filed.  Mrs Marr consents to be joined as a plaintiff.  A statement showing Mrs Marr’s income for the year ending 31 March 2014 has been provided by counsel, and will be confirmed in an affidavit to be filed and served by 6 June.

4.In  addition,  Mrs  Marr  is  prepared  to  underwrite  costs  in  this proceeding and in a related caveat proceeding.  As such, Mrs Marr undertakes that she will be jointly and severally liable for any costs awarded against the plaintiffs in these proceedings (including for steps  taken  prior  to  her  joining  as  plaintiff)  and  for  any  costs awarded against the applicants in favour of the defendant in CIV-

2013-404-4313,   and   consents   to   the   Court   making   orders accordingly.

5.On the basis of the above, the defendant is prepared to withdraw his application for security for costs without prejudice to his claim for costs on the application.

[5]      As a result of the joint memorandum, Venning J vacated the fixture and made orders in terms of the consent memorandum.   Those orders included the filing of memoranda covering costs.

[6]      The defendant seeks costs for the preparation of the application for security for costs only based on Category 2 Band B and in reliance on Item 23 of the Third

Schedule of the High Court Rules.   The exact sum claimed is $1,194.00 plus the filing disbursement of $500.

[7]      In terms of the application, the defendant is the successful party and prima facie is entitled to costs in terms of r 14.2(a).

[8]      Mr Werry, for the defendant, submits that the application was unnecessary and could have been covered simply by asking for the undertaking that was the eventual basis for resolution of the application.   I do not accept that.   I note, in particular, that the parties met and agreed through their solicitors to a timetable to have  the  security  for  costs  application  made  ready  for  hearing.     In  those circumstances  the  defendant  is  entitled  to  costs.     Further,  this  is  a  discrete application.  I see no reason to put off the question of costs until the resolution of proceeding itself.

[9]      Accordingly,  I  order  that  the  plaintiffs  pay  the  defendant’s  costs  on  the

application for security for costs in the sum of $1,194 plus the filing disbursement of

$500.

JA Faire J