O'Brien v New Zealand Home Loan Company Limited HC Auckland CIV 2010-404-008323

[2011] NZHC 1578

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2010-404-008323

BETWEEN  SAMANTHA O'BRIEN Plaintiff

ANDTHE NEW ZEALAND HOME LOAN COMPANY LIMITED

Defendant

Hearing:         21 July 2011

Appearances: W A McCartney for the Plaintiff

M D Branch for the Defendant

Judgment:      21 July 2011

ORALJUDGMENT AS TO COSTS AWARD OF ASSOCIATE JUDGE CHRISTIANSEN

Solicitors/Counsel:

W McCartney, Barrister, Auckland – [email protected]

M Branch, Harkness Henry, Hamilton –  [email protected] /

[email protected]

SAMANTHA O'BRIEN V THE NEW ZEALAND HOME LOAN COMPANY LIMITED HC AK CIV 2010-

404-008323 21 July 2011

[1]      The  defendant’s  application  for  orders  to  transfer  this  proceeding  to  the

Hamilton High Court and for security for costs were set down for hearing today. [2] Those issues were resolved by:

(a)      The plaintiff agreeing that the proceeding is transferred to Hamilton if the judicial settlement conference scheduled for 8 August 2011 is unsuccessful.

(b)The trustees of the plaintiff’s family trust undertaking that the assets of the family trust will be made available to meet any costs award against the plaintiff.

[3]      The parties have agreed to file memoranda as to costs.   The plaintiff has refused to settle costs upon a 2B basis.

[4]      I have now read counsels’ memoranda.  That for the defendant seeks 2B costs and for costs as well for the memoranda filed upon its claim for costs.  In addition the defendant asserts that this is a suitable case for increased costs pursuant to HCR 14.6(3)(b)(ii) which provides that the Court may order increased costs if a party has contributed unnecessarily to the time or expense of the proceeding or on step in it by taking or pursuing an unnecessary step or an argument that lacks merit.

[5]      The plaintiff’s position is that a costs award should be limited to a 2B basis with no extra provision for the supply of costs memoranda, or in respect of any uplift claim.

Decision

[6]      The  proceedings  were  filed  in  the  wrong  Registry.    The  application  for security was appropriate.

[7]      I do not consider the circumstances appropriate to warrant an increase in costs above 2B scale.  There has been delay caused but it is insufficient to require consideration for an uplift.

[8]      Extra costs were involved in respect of the preparing of costs memoranda. This was required because the parties could not settle the payment of costs on a 2B basis.  Some consideration ought to be given to cover the costs of supplying those memoranda.   There were two such from the defendant and I consider a half day allowable on a 2B basis.

[9]      Accordingly 2B costs are fixed in the sum of $2,168.00.  That sum together with disbursements of $633.13 amounts to a total due from the plaintiff in the sum of

$2,801.13.

Associate Judge Christiansen