Rakich v Rakich HC Auckland CIV 2010-404-1654

[2010] NZHC 1922

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-1654

BETWEEN  JOHN MATTHEW RAKICH Appellant

ANDMARISA ANN RAKICH Respondent

Hearing:         On the Papers

Counsel:         D J G Cox for Appellant

M K Headifen for Respondent

Judgment:      28 October 2010

JUDGMENT OF COOPER J ON COSTS

This judgment was delivered by Justice Cooper on

28 October 2010 at 3.30 p.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors:

Rennie Cos, PO Box 6647, Auckland 1141

Craig Griffin & Lord, 187 Mt Eden Road, Mt Eden, Auckland

Copy to:

M Headifen, PO Box 8089, Symonds Street, Auckland

RAKICH V RAKICH HC AK CIV-2010-404-1654  28 October 2010

[1]      In a minute that I issued on 27 July 2010, I directed that the appellant was to file and serve detailed points on appeal together with other documents by 4.00 p.m. on Friday 30 July.  I also directed that if the documents were not filed by then the appeal would be deemed to be abandoned and dismissed without any further call before the Court.

[2]      The documents required to be filed were not filed and in a further minute that I issued on 3 August I recorded that the appeal was deemed to be abandoned and was dismissed.  I indicated that I would receive memoranda if there were any issue as to costs.   The respondent has sought costs, but by a memorandum dated 13 October

2010 counsel for the appellant opposes the making of an order, noting that the respondent has filed a debtor’s bankruptcy petition.  Counsel asserts that under s 76 of the Insolvency Act 2006 “the proceeding is halted”, and submits that it would be appropriate for no costs order to be made, and for costs to lie where they fall. Counsel also questions the calculation of costs set out in the respondent’s memorandum.

[3]      I do not consider that s 76 of the Insolvency Act 2006 stands in the way of an award of costs.  The express terms of the subsection refer to proceedings to recover a debt.  An award of costs is not in that category.

[4]      Mr Headifen has calculated the costs on a category 2B basis as $1,504.   I

allocated the proceeding to category 2 for costs purposes in my minute of 30 March

2010.   The respondent’s calculation includes sums for appearance at two case management conferences.   Mr Cox points out that there was only one conference which counsel attended personally.  The initial conference was able to be dealt with on the basis of counsels’ memoranda.  However, I consider it appropriate to allow for 0.2 of a day on the basis of the preparation of the memorandum for that conference.  I also allow 0.2 of a day in respect of preparation of the memorandum on costs.  There does not seem to be any basis upon which I can properly allow a further figure in respect of correspondence passing between the parties, as sought by Mr Headifen.

[5]      In the result, I allow costs for the respondent in the sum of $1,128.