Mitchell v Northcott

[2021] NZHC 2378

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CIV-2021-443-27

[2021] NZHC 2378

UNDER

of the Insolvency Act 2006

IN THE MATTER

of the bankruptcy of Tasha Northcott

BETWEEN

WARREN JAMES MITCHELL

Judgment Creditor

AND

TASHA MAY NORTHCOTT

Judgment Debtor

Hearing:

On the papers

Appearances:

S F Johnston for judgment creditor

J C LaHatte and J C R Cooper for judgment debtor

Judgment:

13 September 2021

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

[Costs]

[1]                  When this matter was called in the New Plymouth list on 27 August 2021 I was able to set the bankruptcy notice served by the judgment creditor on the judgment debtor aside by consent, the parties having concluded that that was the right course. The judgment debtor’s application was therefore not argued.

[2]                  The only outstanding question is costs. The judgment debtor is the successful party in the sense that her application succeeded. On her behalf, Mr LaHatte seeks costs on a 2B basis which he calculates — correctly as far as I can see — at $2,987.50. In applying for costs the judgment debtor says that the bankruptcy notice was served prematurely. The judgment creditor opposes costs. He says, through Mr Johnston, that he acted properly throughout on the basis of his understanding of the position and

MITCHELL v NORTHCOTT [2021] NZHC 2378 [13 September 2021]

was doing no more than exercising his entitlement to enforce the Australian judgment after it was registered in New Zealand. Mr Johnston also submits that if there is to be a costs award then costs should be calculated on a 2A basis.

[3]                  In my view a costs award is appropriate in this case. That should not be taken as indicating that I take any particular view about the actions of either party. Except in extraordinary circumstances costs are a neutral factor and an award of costs in favour of a successful party does not carry with it the implication that the unsuccessful party has acted inappropriately.

[4]                  The simple fact of the matter is that the judgment creditor initiated things by serving a statutory demand and the judgment debtor’s only option was to seek to set that aside which is what she did. In the absence of anything out of the ordinary that means that the judgment debtor as the successful party is entitled to a costs award. There is nothing in anything said by Mr Johnston on behalf of Mr Mitchell which leads me to think that the case should be dealt with otherwise.

[5]                  It is important in my view that this general approach is maintained so as to avoid costs hearings traversing the case to determine — or redetermine — the appropriateness of steps taken by the parties.

[6]                  Those things said, I accept Mr Johnston’s submission that on any view this was the simplest conceivable case and that costs should be awarded on a 2A basis.

[7]I trust I can leave it to counsel to sort out the costs on that basis.

[8]The Registrar can deal with any issue as to disbursements.

Associate Judge Johnston

Solicitors:

C & M Legal, New Plymouth for judgment creditor Ord Legal, Wellington for judgment debtor