Northland Regional Council v Gill

[2020] NZHC 3062

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-2381

[2020] NZHC 3062

BETWEEN

NORTHLAND REGIONAL COUNCIL

Plaintiff

AND

HARKIRAT SINGH GILL

First Defendant

MAHER MOHAMMAD JAMMAL
Second Defendant

RESOURCES ENTERPRISES LIMITED

Third Defendant

Hearing:

On the papers

Counsel:

D T Broadmore and H C Snell for Plaintiff T J Cooley for First Defendant

J W Turner for Second Defendant

Judgment:

19 November 2020

COSTS JUDGMENT OF WHATA J

This judgment was delivered by me on 19 November 2020 at 3.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors:           Buddle Findlay, Auckland

Brookfields, Auckland

Michael Dineen Law, Auckland

NORTHLAND REGIONAL COUNCIL v GILL [2020] NZHC 3062 [19 November 2020]

[1]    In my judgment of 8 October 2020, I expressed a view that costs should be awarded on a solicitor/client basis, as expressly provided for in the Term Loan but I directed that the parties could file submissions. The second defendant has subsequently filed submissions. Those submissions are adopted by the first defendant. The first defendant submits that while cl 19.1(b) of the Term Loan Agreement refers to “all costs”, he says it does not expressly refer to “costs on a solicitor/client basis” or “costs on an indemnity basis” which is the normal formula, he says, used in such clauses. He refers to the decision of Re Adelphi Hotel (Brighton), Ltd. District Bank, Ltd. v Adelphi Hotel (Brighton), Ltd1 as authority for the proposition that, unless the clause provides expressly for full indemnity, then the usual rules as to costs should apply. He therefore submits that costs should be awarded on a 2B basis.

[2]    The plaintiff responds, noting that under r 14.6(4)(e) of the High Court Rules 2016, the Court may order a party to pay indemnity costs if the party claiming costs is entitled to indemnity costs under a contract or deed. It is noted that the term “costs” is defined at cl 1.2 of the Term Loan Agreement to include “expenses (including legal fees and expenses on a full indemnity basis)”. Accordingly, it is submitted the plaintiff is entitled to costs on a full indemnity basis. However, it is noted the plaintiff’s costs on an indemnity basis are not significantly more than the costs it would be entitled to on a scale 2B basis. Accordingly, to avoid further costs, the plaintiff is prepared to accept costs of $24,975.50 awarded on a scale 2B basis, together with disbursements of $1,457.39.

Assessment

[3]    Given the pragmatic position reached by Mr Broadmore, I make the order as to costs on a scale 2B basis, together with disbursements in the sums specified by the plaintiff.

1      Re Adelphi Hotel (Brighton), Ltd. District Bank, Ltd. V Adelphi Hotel (Brighton), Ltd [1953] 2 All ER 498.