Reid v Carterton Auto Court Limited t/a McKenzie Motors

[2012] NZHC 2111

IN THE HIGH COURT OF NEW ZEALAND MASTERTON REGISTRY

CIV-2010-435-120 [2012] NZHC 2111

UNDER  the Judicature Act 1908, the Judicature Amendment Act 1972, the Declaratory Judgments Act 1908, the Credit (Repossession) Act 1997, the Land Transfer Act 1952 and the New Zealand Bill of Rights Act 1990

IN THE MATTER OF     the judicial review of judgments of the Masterton District Court Registrar and the Masterton High Court Sheriff

BETWEEN  JAMES ROBERT REID AND GRAEME FREDERICK HALE AS TRUSTEES OF THE FREDERICK FRANK FAMILY TRUST

Applicants

ANDCARTERTON AUTO COURT LIMITED T/A MCKENZIE MOTORS

First Defendant

ANDMASTERTON DISTRICT COURT Second Respondent

ANDMASTERTON HIGH COURT Third Respondent

Hearing:         On the papers

Counsel:         Applicants in person

D M Consedine and T J Warburton for Second and Third Respondents

Judgment:      20 August 2012

In accordance with r 11.5 I direct that the delivery time of this judgment is 4.30pm on the 20th day of August 2012.

REID AND HALE V CARTERTON AUTO COURT LIMITED T/A MCKENZIE MOTORS HC MAS CIV-

2010-435-120 [20 August 2012]

JUDGMENT OF MACKENZIE J

[1]      Counsel for the second and third respondent seeks costs in these proceedings, following the reservation of costs in my judgment delivered on 28 May 2012.

[2]      Submissions have been filed in accordance with the timetable set in [23] of that judgment.  That timetable provided that the second and third respondents file a memorandum within 14 days after delivery of judgment, that is, by 11 June 2012. Counsel’s memorandum is dated 12 June 2012.   The applicants’ memorandum in opposition is dated 13 June 2012.   The applicants object to the late filing of the respondents’ memorandum.   The delay is very small and cannot have caused prejudice.   I address the question of costs notwithstanding that minor non- compliance.

[3]      Counsel  for  the  second  and  third  respondent  seeks  costs  against  both applicants  for the strikeout  proceedings  and  for  the unsuccessful  application  by Mr Reid for joinder on 15 September 2010.   Counsel refers to r 14.2 of the High Court Rules which sets out the general rule that a party who fails in relation to an interlocutory application should pay costs to the party that succeeds.

[4]      Mr Reid’s memorandum opposing costs refers to a number of matters which essentially challenge the correctness of the judgment.  Mr Reid has filed a notice of appeal to the Court of Appeal against that judgment.  The lodging of that appeal does not call for any delay in fixing costs in this Court.  I must proceed to award costs on the basis of the judgment.

[5]      The applicants submit that any costs must be ordered against the applicant trust and not its trustees.  Both trustees are named as applicants.  Under r 4.23(1) of the High Court Rules, trustees may sue and be sued on behalf of, or as representing, the property of which they are trustees.   So, an award against the trustees is appropriate.

[6]      The applicants submit that any award of costs to the respondents would be repugnant to justice.  I do not accept that submission.  The applicants further assert that the claim for costs is in retribution for certain actions taken by Mr Reid.  There is no evidence to support that assertion.

[7]      In the circumstances I see no reason to depart from the ordinary rule that the applicants  should  pay  costs  to  the  second  and  third  respondents,  as  successful parties.

[8]      As to quantum, the proceedings have not been categorised for costs purposes. In the circumstances, I fix costs at category 1.  In doing so, I bear in mind Mr Hales’ straitened circumstances, as he described them to me at the hearing.   Costs on a category 1 basis for the strikeout application are $6,250.

[9]      The  second  and  third  respondents  also  seek  costs  on  Mr Reid’s  failed interlocutory  application  for  joinder.    Costs  on  that  application  were  initially reserved by Ronald Young J in his judgment dated 15 September 2010.   At that stage, Mr Reid was not a trustee of the trust.   He was subsequently appointed a trustee.   In a subsequent judgment delivered on 1 December 2011, Mallon J added Mr Reid as an applicant in his capacity as a trustee of the trust.  She further reserved the question of costs.  In the circumstances I consider that no order for costs on that application is appropriate.

[10]     I award costs of $6,250, plus disbursements of $604.18, a total of $6,854.18, in favour of the second and third respondents jointly, against the applicants.

“A D MacKenzie J”

To:                  J R Reid and G F Hale, Applicants

Solicitors:         Crown Law, Wellington for Second and Third Respondents