Pearson v Official Assignee

[2020] NZHC 1040

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-2720

[2020] NZHC 1040

BETWEEN

ANDREA REBECCA PEARSON

Appellant

AND

OFFICIAL ASSIGNEE

Respondent

Hearing:	On the papers
Counsel:	WGC Templeton for the Appellant S Farnell for the Respondent
Judgment:	19 May 2020

JUDGMENT OF MUIR J

(Costs)

This judgment was delivered by me on Tuesday 19 May 2020 at 2.00 pm Pursuant to Rule 11.5 of the High Court Rules.

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

Counsel:

WGC Templeton, Barrister, Auckland

Solicitors:

M Bhanabhai, Dywer Whitechurch, Auckland S Farnell, Meredith Connell, Auckland

PEARSON v OFFICIAL ASSIGNEE [2020] NZHC 1040 [19 May 2020]

[1]    On 4 December 2018 Mrs Pearson filed an appeal from a decision of Judge Sinclair in the District Court1 granting possession of a property at 31 Baddeley Avenue, Kohimarama to the Official Assignee under s 152 of the Insolvency Act 2006.

[2]    On 19 February 2019 Jagose J directed Ms Pearson to pay security for costs totalling $557.50.

[3]    On 15 July 2019 Ms Pearson’s appeal was dismissed by order of this Court on the basis that she had failed to proceed with it. Leave was, however, reserved to her to seek reinstatement of the appeal in the event that there were circumstances unknown to the Court at that time.

[4]    In her Minute dated 15 July 2019 Gordon J noted advice by the Official Assignee that, as part of a wider settlement, Ms Pearson had agreed to discontinue her appeal and vacate the Baddeley Avenue property. The solicitors of record indicated that at that time they had no instructions and sought leave to withdraw. Junior counsel who appeared at the hearing did, however, table a letter on behalf of senior counsel Mr Templeton indicating that he was currently overseas but proposing to file a discontinuance on his return. It was against that background that her Honour granted the reservation referred to.

[5]    Counsel for the Official Assignee advises that no application for costs was made at that time because of the reservation of leave but now, 10 months later with no such application having been filed, it is appropriate that costs be fixed.

[6]    Counsel therefore seeks costs of $3,791.00 and disbursements of $50 and a further order that the security for costs held by this Court be paid to the Official Assignee.

[7]    No submissions have been filed by Ms Pearson, although Mr Templeton did indicate by email on 11 March 2020 that:

The appeal was withdrawn in about August of last year before it was heard and no costs or orders were sought.

1      Official Assignee v Pearson [2018] NZDC 23932.

The money should be refunded and not paid to the public account.

[8]    I regard there is no good reason why costs should not be fixed in favour of the Official Assignee. To all intents and purposes it was the successful party. Its costs calculation reflects required attendances down to the point at which leave to withdraw was sought and the appeal was dismissed. The position is no different to that of dismissal after hearing other than in respect of the costs saved.

Result

[9]    I award costs against the appellant in the amount of $3,791.00 plus disbursements of $50.00.

[10]   I direct that the security for costs held by the Registrar of this Court be released to the Official Assignee.

Muir J