Mawhinney v Official Assignee

[2017] NZHC 662

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-848 [2017] NZHC 662

BETWEEN

PETER WILLIAM MAWHINNEY

Applicant

AND

OFFICIAL ASSIGNEE Respondent

Hearing:	(On the papers)
Appearances:	Applicant in person G A D Neil for Respondent
Judgment:	7 April 2017

JUDGMENT OF BREWER J

Solicitors:           Meredith Connell (Auckland) for Respondent

Copy to:            Applicant in person

MAWHINNEY v OFFICIAL ASSIGNEE [2017] NZHC 662 [7 April 2017]

Introduction

[1]      Mr Mawhinney’s application for judicial review was set down for hearing commencing 3 April 2017.   On 29 March 2017, Mr Mawhinney filed a notice of discontinuance. The Official Assignee seeks costs.

Discussion

[2]      It is a well known principle that costs generally follow the outcome of a case. Rule 15.23 of the High Court Rules provides that unless the defendant otherwise agrees or the Court otherwise orders, a plaintiff who discontinues a proceeding against a defendant must pay costs to the defendant of and incidental to the proceeding up to and including the discontinuance.

[3]      In this case, Mr Mawhinney submits that costs should lie where they fall.  In a memorandum filed on 3 April 2017, Mr Mawhinney advised that he was only interested  in  opposing  the  Official  Assignee’s  various  requests  because  of  a Waitakere  property  that  he  was  concerned  with.    On  28  March  2017,  it  was confirmed to Mr Mawhinney that the Waitakere property had been sold by a mortgagee.   Mr Mawhinney’s interest having disappeared, he discontinued this proceeding.

[4]      I see nothing in this explanation that should displace the general expectation that a plaintiff who discontinues a proceeding must pay the defendant’s costs.  I take note  that  Mr  Mawhinney  is  a  prolific  litigator  and  is  no  stranger  to  incurring litigation  costs.    As  counsel  for  the  Official  Assignee  submits,  the  fact  that Mr Mawhinney is an undischarged bankrupt does not provide an impediment to the Court making an award of costs against him.  The proceeding was commenced post- adjudication.

[5]      The Official Assignee has quantified his claim for scale 2B costs at $19,848 and has particularised the claim in a table within the memorandum of counsel dated

29 March 2017.  I consider the Official Assignee’s quantification to be reasonable.

Decision

[6]      Mr  Mawhinney  must  pay  costs  to  the  Official  Assignee  in  the  sum  of

$19,848.

Brewer J