New Zealand Bloodstock Finance & Leasing Limited v Jones

[2023] NZHC 1747

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-1770

[2023] NZHC 1747

UNDER

of the Insolvency Act 2006

IN THE MATTER

of the bankruptcy of Gregory John Jones

BETWEEN

NEW ZEALAND BLOODSTOCK FINANCE & LEASING LIMITED

Judgment Creditor

AND

GREGORY JOHN JONES

Judgment Debtor

Appearances:	F A King for Judgment Creditor Judgment Debtor appears in person
Judgment:	6 July 2023

JUDGMENT OF ASSOCIATE JUDGE LESTER

(Costs)

NEW ZEALAND BLOODSTOCK FINANCE & LEASING LIMITED v JONES [2023] NZHC 1747 [6 July 2023]

[1]                 New Zealand Bloodstock Finance & Leasing Ltd (Bloodstock) seeks that costs be fixed in relation to the applications brought by Mr Jones in respect of the bankruptcy notice issued by Bloodstock.

[2]                 The applications were an application to call further evidence and other matters (the evidence application) which was dealt with on the papers and the application to set aside the bankruptcy notice itself.

[3]                 I have already determined that Bloodstock is entitled to costs and disbursements on a 2B basis. Mr Jones takes issue with whether some of the allowances on a 2B basis accurately reflect the amount of time Bloodstock’s counsel would have spent on those steps.

[4]                 The starting point is that scale costs are not permitted to exceed actual costs. Accordingly, if Bloodstock’s actual costs in respect of the steps for which it claims scale costs were less than scale it is not permitted to claim scale costs. Bloodstock’s counsel has a duty to advise the Court if scale costs exceed actual costs. The point of the scale is to avoid revisiting each and every step covered by the scale to determine whether the scale allowance is generous or otherwise. While that may mean there are some “unders and overs” in respect of particular steps, to embark on a step-by-step analysis would undermine the intent of the scale which is to make the fixing of costs predictable and cost efficient.

[5]                 However, I note the claim for the appearance at the hearing of the application to set aside a full day is claimed. My notes show that Mr Jones commenced his reply at 2.25 pm meaning only three-quarters of a day should be allowed for item 26 “appearance at hearing”.

[6]                 As to the claim made by Bloodstock in respect of the evidence application dealt with on the papers, I agree with Mr Jones that Bloodstock’s claim for item 24 “preparation of written submissions 1.5 days” is inappropriate. Bloodstock did not file written submissions in respect of Mr Jones’s applications. It filed memoranda of only a few pages. I disallow the claim of 1.5 days in respect of Mr Jones’s interlocutory applications. In respect of the two memoranda filed for those

applications I direct an allowance of 0.2 of a day for each of those memoranda and accordingly the 1.5 day claim becomes 0.4.

[7]                 Therefore the total allowable number of days is 4.05 days rather than 5.4 days claimed. At the daily rate of $2,3290 it creates to a costs award of $9,679.50. There is an award of costs in favour of Bloodstock against Mr Jones in that sum.

[8]                 Mr Jones’s submissions took no issue with the disbursements claimed by Bloodstock. Accordingly, there is a further order that Mr Jones is to pay disbursements of $644.96 to Bloodstock.

Associate Judge Lester

Solicitors:

McKenna King Dempster, Hamilton CC:

G Jones