Rickard v Rickard HC Wellington CIV-2006-485-2252

[2007] NZHC 1698

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2006-485-2252

IN THE MATTER OF     the Insolvency Act 1967

AND

IN THE MATTER OF     PAUL STEPHEN RICKARD Judgment Debtor

ANDBARBARA LINDA RICKARD Judgment Creditor

Judgment:      27 March 2007 at 10.30 am

In accordance with r540(4) I direct the Registrar to endorse this judgment with a delivery time of 10.30am on the 27th day of March 2007.

JUDGMENT AS TO COSTS OF ASSOCIATE JUDGE D.I. GENDALL

[1]      On 17 January 2007 the judgment creditor filed a creditor’s petition seeking an order for adjudication in bankruptcy of the judgment debtor.

[2]      The petition referred to an outstanding debt owing to the judgment creditor of

$861.34.

[3]      This $861.34 debt was then paid by early March 2007.   As a result, on 5

March 2007 at the request of counsel for the judgment creditor, leave to withdraw this proceeding was granted.

[4]      Also on 5 March 2007 counsel for the judgment creditor sought an order for costs against the judgment debtor on the basis that it was only subsequent to the

issue of these bankruptcy proceedings that the debt in question was finally settled.

IN THE MATTER OF PS RICKARD HC WN CIV-2006-485-2252  27 March 2007

[5]      The judgment debtor appeared in person on that date and opposed any order for costs being made.

[6]      A direction was given on 5 March 2007 that memoranda were to be filed by the judgment debtor and the judgment creditor as to the issue of costs, and when this had occurred I would decide the issue on the basis of the material filed.

[7]      Counsel for the judgment creditor has now filed a memorandum as to costs dated 19 March 2007.   The judgment debtor has himself filed a memorandum on costs dated 12 March 2007.

[8]      I have had an opportunity to consider the material in these memoranda and now provide my decision on the costs question.

[9]      This matter broadly involves the winding-up of certain matrimonial issues consequent upon the separation of the judgment debtor and the judgment creditor which occurred in July 2001.

[10]     The judgment creditor obtained judgment in the District Court at Wellington against the judgment debtor on 30 September 2005.  This required him to pay a net amount to the judgment creditor of $9,826.00.

[11]     Subsequently, costs and interest have been incurred, and a bankruptcy notice was served upon the judgment debtor on 25 October 2006 requiring payment from him of $10,838.40, together with additional costs and disbursements.

[12]     Payment  of  part  of  this  sum  being  about  $9,400.00  was  made  by  the judgment  debtor  on  3  November  2006.    An  outstanding  balance  of  $861.34, however, remained outstanding, and as I have noted, the judgment creditor filed her creditor’s petition in this Court on 17 January 2007.

[13]     It was only as a result of that action that the final balance owing under these arrangements was paid by the judgment debtor.

[14]     Having considered the matters raised in the memoranda as to costs filed by both counsel for the judgment creditor and the judgment debtor himself, I cannot see in this case that there is any good reason why the usual course that costs follow the event should not be followed.

[15]     The judgment debtor in his memorandum complains that one of the reasons he  withheld  certain  payments  from  the  judgment  creditor  when  he  made  the

$9,400.00 part payment on 3 November 2006 was because certain chattels including photograph albums held by the judgment creditor at the time were not returned to him when they should have been.   There is no evidence of this before the Court, however.  Nor does it appear, as I understand the position, that the judgment debtor has taken any formal proceedings against the judgment creditor with regard to his claims concerning these chattels.  The judgment debtor also raises issues concerning disputes over certain properties owned by a Trust.  These matters, however, do not appear to be relevant to the relationship property determination and payment of the sum ordered in respect of that matter.   That said, and although the matrimonial aspects of this matter clearly have a long and acrimonious history, I am satisfied here that there is nothing of substance before the Court to encourage a departure from the usual position that costs should follow the event.

[16]     That said, an order is now made that the judgment debtor is to pay to the judgment creditor costs calculated on a category 2B basis with respect to this proceeding, together with disbursements as fixed by the Registrar.

‘Associate Judge D.I. Gendall’

Solicitors:

Maude & Miller, Porirua City for Judgment Creditor