Memelink v Official Assignee
[2022] NZHC 1283
•1 June 2022
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE WHANGANUI-A-TARA ROHE
CIV-2018-485-363
[2022] NZHC 1283
BETWEEN HARRY MEMELINK
Applicant
AND
THE OFFICIAL ASSIGNEE
First Respondent
PHILLIP MCKINLEY
Interested Party
Hearing: On the papers Appearances:
D Livingston for Applicant P Chisnall for Respondent
J Pietras for Interested Party
Judgment:
1 June 2022
JUDGMENT OF ASSOCIATE JUDGE JOHNSTON
[Costs]
[1] In a reserve judgment dated 12 May 2022, I dismissed applications by both the applicant and the interested party for orders varying a determination made by the Official Assignee in connection with a claim against the applicant’s bankrupt estate. Essentially, I was not prepared to depart from the determination made by the Official Assignee.
[2] In the last paragraph of my judgment, I reserved costs. I observed that the applicant and the interested party had both been unsuccessful in their applications, but successful in opposing each other’s application. I therefore suggested that this was a case in which costs should be left to lie where they had fallen. Although I indicated
MEMELINK v THE OFFICIAL ASSIGNEE [2022] NZHC 1283 [1 June 2022]
in the same paragraph that the Official Assignee’s position may be different, Mr Chisnall has since filed a memorandum indicating that the Official Assignee’s costs will be paid out of the estate in bankruptcy.
[3] Despite my preliminary view, the interested party has filed a memorandum and seeks costs. Mr Livingston has responded by memorandum dated 27 May 2022. This was filed and served a day after the expiration of a five working day extension which I gave him. In other circumstances, I would have refused to read Mr Livingston’s memorandum. However, I have considered it.
[4] Costs are dealt with in pt 14 of the High Court Rules. That part of the Rules contains a comprehensive costs regime, sitting alongside the second and third schedules. The regime applies to every civil proceeding, and each step in the proceeding.1 The overarching purpose is to ensure that parties engaging in litigation can predict with relative certainty what the costs outcome will be. There is a strong implication that the Court is to apply the regime in the absence of some reason to the contrary.2 The basic Rules are not complicated. As a starting point costs are fundamentally a matter for the Court’s discretion.3 However, the Rules provide that in the first instance costs are to follow the event, that is to say that the successful party is entitled to an award of costs.4
[5] As to quantum, that is calculated by reference to the three categories of appropriate daily recovery rate (1–3) in r 14.3 and the three categories of time considered reasonable in the second schedule.5 These categories are designed to accommodate gradations of complexity in the litigation and the seniority and experience of counsel necessary to deal with it.
[6] The purpose of having a comprehensive costs regime is to ensure that the Court does not in every case have to make an individualised assessment as to costs. Were that necessary, the inevitable result would be to make costs less predictable.
1 High Court Rules 2016, r 14.1(1)(a) and (c).
2 McGechan on Procedure (Online loose-leaf ed Thomson Reuters) at HR14.1.02; see also
Manukau Golf Club Inc v Shoye Venture Ltd [2012] NZSC 109, [2013] 1 NZLR 305 at [7].
3 High Court Rules 2016, r 14.1.
4 Rule 14.2(1)(a).
5 Rule 14.2(1)(c) and (d)
[7] I have of course considered the submissions filed and served by Mr Pietras and Mr Livingston. However I am unpersuaded from the view I reached earlier.
[8] The reality in this case is that both Mr Memelink as the bankrupt and Mr McKinley as one of his creditors challenged the Official Assignee’s determination of the latter’s claim in the bankruptcy. Mr Memelink’s case was that there should be no allowance because there is no contractual basis for Mr McKinley’s claim. I rejected that argument. Mr McKinley’s case was that the Official Assignee erred in making the particular determination he did and that his claim was entitled to be recognised to a greater extent. I rejected that argument. On the other side of the coin, Mr Memelink successfully opposed Mr McKinley’s application and Mr McKinley successfully opposed Mr Memelink’s application.
[9] On any view, both parties achieved an equal measure of success. In my view, this is clearly a case where substantial justice in relation to costs will be done if Mr Memelink and Mr McKinley are left to shoulder the burden of their own costs.
[10]I make no order for costs in favour of any party.
Associate Judge Johnston
Solicitors:
Livingston & Livingston, Wellington for applicant
The Office of the Official Assignee, Wellington for respondent Thomas Dewar Sziranyi Letts, Lower Hutt for interested party
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