Monasterio and Moya v Bujak and others HC CHCH CIV 2008-409-001901

[2010] NZHC 70

IN THE HIGH COURT OF NEW ZEALAND

CHRISTCHURCH REGISTRY

CIV-2008-409-001901

BETWEEN  MARCOS ERIK MONASTERIO

MARIA JOSE MARCOS MOYA Plaintiffs

ANDSLAWOMIR RYSZARD BUJAK First Defendant

ANDDANUTA ALEKSANDRA ZALWOWSKA-SPISAK Second Defendant

ANDHUGH SHEARER Third Defendant

Counsel:           G E Slevin for Plaintiffs

F C Deliu for Defendants

Judgment:      8 February 2010

JUDGMENT OF HON. JUSTICE FRENCH

As to Costs

[1]      In my decision of 21 August  2009,  I  granted  the  plaintiffs’  application  for

disclosure  orders.   The  first  defendant,  Mr  Bujak,  had  unsuccessfully opposed  the application,  and  I  expressed  a  provisional  view  that  he  should  pay  the  plaintiffs’ costs on a 2B basis.

[2]      Subsequently,  Mr  Bujak  appealed  my  decision,  but  the  Court  of  Appeal dismissed the appeal.

[3]      The plaintiffs now seek an order for costs on a 2B basis.  These are calculated

in the sum of $3200 plus disbursements of $640, making a total of $3840.

MONASTERIO AND ANOR V BUJAK AND ORS HC CHCH CIV-2008-409-001901  8 February 2010

[4]      In  addition,  the  plaintiffs  also  seek  indemnity  costs  for  additional  steps necessitated by Mr Bujak allegedly attempting to frustrate the disclosure order and refusing to comply with it.

[5]      The plaintiffs’ actual solicitor/client costs  incurred  as  a  result  amount  to

$9229 plus GST.

[6]      Those costs, combined with the 2B costs on the application, make a total of

$14,222.62.

[7]      The application for costs is unopposed.

[8]      Rule 14.6(4) provides that a party may be ordered to pay indemnity costs if:

(a)the   party   has   acted   vexatiously,   frivolously,   improperly,   or unnecessarily in commencing, continuing, or defending a proceeding or a step in a proceeding; or

(b)      the party has ignored or disobeyed an order or direction of the court

or breached an undertaking given to the court or another party; or

…

(f)some other reason exists which justifies the court making an order for  indemnity  costs  despite  the  principle  that  the  determination  of costs should be predictable and expeditious.

[9]      I  am  satisfied  that  Mr  Bujak  has  deliberately  failed  to  comply  with  the disclosure order and has also deliberately tried to frustrate it by invoking the aid of the Family Court while attempting to conceal from that Court his reasons for doing so.

[10]     In my view this is one of those rare cases where it is appropriate to make an order for indemnity costs.  As stated in the decision of Hoole v Darby HC Auckland CIV-2006-404-005235, 30 March 2007, Venning J, such an order is designed not to punish Mr Bujak so much as to recognise that the plaintiffs should not have to bear the costs that were only incurred because of his improper actions.

[11]     There will therefore be an order that Mr Bujak pay the plaintiffs’ costs in the sum of $14,222.62, being the post-hearing indemnity costs and the 2B costs on the application itself.

Solicitors:
Wynn Williams & Co, Christchurch
A McClymont, Auckland

(Counsel: F C Deliu, Manukau City) Copy to: S R Bujak