Sharma v MVH Trustee Limited

[2019] NZHC 2055

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2019-404-00562

[2019] NZHC 2055

UNDER

The District Court Act 2016

IN THE MATTER

An appeal against a decision of the District Court Manukau

BETWEEN

NAVIN DUTT SHARMA and KARISHMA DEVI SHARMA

Appellants

AND

MVH TRUSTEE LIMITED

Respondent

Hearing:	On the papers
Counsel:	No appearance for or by the Appellants M M Gunawan for the Respondent
Judgment:	4 September 2019

JUDGMENT OF JAGOSE J

[Costs]

The judgment was delivered by me on 4 September 2019 at 3.00pm.

Pursuant to Rule 11.5 of the High Court Rules

……………………………… Registrar/Deputy Registrar

Solicitors/Counsel:

Patel Nand Legal, Auckland Copy to the Appellants

SHARMA v MVH TRUSTEE LIMITED [2019] NZHC 2055 [4 September 2019]

[1]                 The respondent seeks indemnity costs in the amount of $8,887.50 (including GST) from the appellants, on their deemed abandonment of the appeal for non- payment of security for costs by 16 July 2019 as ordered by Powell J on 4 June 2019. No response is forthcoming from the appellants.

[2]                 The respondent’s counsel, Max Gunawan, calculates 2B scale costs to amount to $5,019.00. But he relies alternatively on HCR 14.6(4)’s paragraphs (a) or (b) to recover indemnity costs. I need not enquire into the appellants’ actions in commencing the appeal under the former, when there is such clear non-compliance with the Court’s order justifying indemnity costs under the latter.

[3]                 However, recoverable expenses ordinarily exclude GST, for which the GST- registered party is able to recover a GST input credit from the Commissioner of Inland Revenue.1 Otherwise, the respondent may recover from the appellants its actual legal expenses, reasonably incurred.2

[4]I am comfortable both actuality and reasonableness is established, as I:

(a)have Mr Gunawan’s note of his fee, acknowledged by the respondent, in the sought amount;

(b)calculate scale costs of $5,019 to equate to “reasonable costs” minorly in excess of $7,500.3

[5]The appellants are therefore to pay the respondent costs in the amount of

$7,740 if the respondent is GST-registered, or $8,887.50 if the respondent is not GST- registered. Evidence of non-registration is required if the latter sum is claimed.

—Jagose J

1      New Zealand Venue and Event Management Ltd v Worldwide NZ LLC [2016] NZCA 282, (2016) 27 NZTC 22-058 at [6] and [12].

2      HCR 14.6(1)(b).

3      HCR 14.2(1)(d).