Roquefort James Limited v Northern Trustee Services (BT) Limited HC Auckland CIV 2010-404-975

[2010] NZHC 1040

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2010-404-975

IN THE MATTER OF     Section 167 of the Personal Property

Securities Act 1999

BETWEEN  ROQUEFORT JAMES LIMITED Applicant

ANDNORTHERN TRUSTEE SERVICES (BT) LIMITED

Respondent

Hearing:         26 May 2010

Counsel:         J Foley for Applicant

M Colthart for Respondent

Judgment:      26 May 2010

ORAL JUDGMENT OF MILLER J

[1]      Before  me  is  an  interlocutory  application  for  orders  striking  out  the respondent’s notice of opposition, appointing a receiver of a boat, and authorising the receiver to sell the boat and disburse its proceeds.

[2]      The application is brought on the ground that the respondent has failed to pay the costs of an interlocutory application pursuant to a direction given by Andrews J on 6 May.  She directed that the respondent pay costs on a 2B basis together with disbursements as fixed by the Registrar, those costs to be paid within seven days of an appropriate order being sealed.

[3]      The order was sealed and served on 11 May without consultation between counsel as to the quantum.  On the 14th  of May Mr Colthart’s instructing solicitor,

ROQUEFORT JAMES LIMITED V NORTHERN TRUSTEE SERVICES (BT) LIMITED HC AK CIV 2010-

404-975  26 May 2010

Mr Hucker, faxed a query whether the 2B costs exceeded the actual costs incurred by the applicant.  It seems that fax was not received.

[4]      However,  the  costs  have  now  been  paid.    There  is  no  dispute  that  the quantum of the order was correctly calculated.  The application for orders striking out the respondent’s notice of opposition and for other orders, has been withdrawn.

[5]      The issue before me today is the costs of that application, which again are sought on a 2B basis.  As to that it seems to me that costs are properly awarded on a

2B basis for two reasons.   First, the proper time to raise the query about the relationship between scale and actual costs was before Andrews J.  She has ordered that costs be fixed on a 2B basis and that is an end of the matter.  There is no dispute as to the actual calculation.

[6]      Second, I accept that the application sought other orders which have now been abandoned, but they would not affect the calculation of costs properly payable pursuant to scale.  In other words, the application for striking out for non-payment of costs would in itself justify costs on a 2B basis.

[7]      Costs are fixed accordingly.

[8]      The costs of $2,440.00 with disbursements is fixed by the Registrar.   An order may be sealed accordingly.  On service it is to be paid within seven days.

Miller J

Solicitors:

Foley & Hughes, Auckland for Applicant

Hucker Associates, Auckland for Respondent