Rocket Surgery Limited v Goodwin - [2013] NZHC 3486

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CIV 2013-412-000456 [2014] NZHC 3486

IN THE MATTER OF The Insolvency Act 2006

AND IN THE MATTER the bankruptcy of Mary Elizabeth
Goodwin

BETWEEN ROCKET SURGERY LIMITED Judgment Creditor

ANDMARY ELIZABETH GOODWIN Judgment Debtor

Hearing: By memorandum

Appearances: A C Beck for applicant
D P Robinson for respondent

Judgment: 19 December 2013

COSTS JUDGMENT OF ASSOCIATE JUDGE ABBOTT

This judgment was delivered by me on 19 December 2013 at 3pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:
Jenny Beck Law, Dunedin
Gallaway Cook Allan, Dunedin

Counsel:
Andrew Beck, Greytown

ROCKET SURGERY LIMITED v GOODWIN [2013] NZHC 3486 [19 December 2013]

[1] Mary Elizabeth Goodwin (Mrs Goodwin) has applied for costs in respect of an application to set aside a bankruptcy notice, after Rocket Surgery Limited (RSL) withdrew the notice. Mrs Goodwin claims she is entitled to costs as the successful party.

[2] RSL opposes any order and contends that in the circumstances of this case the parties should each bear her or its own costs.

[3] For the reasons I will now give I have decided that no order for costs is warranted.

Background

[4] To understand my decision it is necessary to give some background to the application. Mrs Goodwin (together with her husband) was ordered to pay costs to RSL following an unsuccessful application by them to sustain a caveat over land registered in RSL’s name.1 As part of the judgment dismissing that application, Mr and Mrs Goodwin were ordered to pay costs on a 2B basis, together with disbursements as fixed by the Registrar (but expressly allowing the cost of airfares
for RSL’s counsel).

[5] Immediately after release of the judgment, counsel for the Goodwins filed a memorandum seeking deferral of the order for costs on the grounds that the Goodwins had applied for, and were waiting for a decision on, a grant of legal aid. RSL responded, opposing deferral and submitting a draft judgment for sealing, including a schedule of costs and disbursements. Counsel for the Goodwins responded immediately on the request for deferral and took issue with aspects of the schedule of costs and disbursements. The following day the Court issued a minute recalling and reissuing the judgment to clarify the reasoning in respect of the costs order (which had not been sealed at that point).

[6] The Court’s minute (issued on 20 August 2013, the day following the last two

memoranda) did not address the issues raised on behalf of the Goodwins in relation

1 Goodwin v Rocket Surgery Ltd [2013] NZHC 2046.

to the quantum of costs, and the reissued judgment still provided for the Goodwins to pay costs on a scale 2B basis together with disbursements as fixed by the Registrar (but allowing counsel’s airfare).

[7] Counsel for RSL assumed that the quantum issues had been determined, and requested release of a sealed judgment with the schedule of costs previously submitted. The Registrar sealed the judgment…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Rocket Surgery Limited v Goodwin

Details

AGLC: Rocket Surgery Limited v Goodwin [2013] NZHC 3486
Case: [2013] NZHC 3486
Decision Date: 19 December 2013

CaseChat Overview and Summary

Rocket Surgery Limited sought costs from Mary Elizabeth Goodwin in relation to an application to set aside a bankruptcy notice, which was withdrawn by Rocket Surgery Limited after the Court recalled a sealed costs order. Goodwin applied for costs as the successful party. Rocket Surgery Limited opposed the application and contended that each party should bear its own costs. The issue for the Court was whether the unusual circumstances of this case justified a departure from the principle that ordinarily costs follow the result. The Court held that Rocket Surgery Limited was not acting improperly by issuing the bankruptcy notice without first making demand, and that it had reason to believe that Goodwin may be insolvent. The Court decided that in the unusual circumstances of this case, costs should lie where they fall.

Orders