Sharrock v Kipping

[2020] NZHC 1037

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2018-409-244

[2020] NZHC 1037

IN THE MATTER

of the Insolvency Act 2006

AND

IN THE MATTER

of the bankruptcy of JOHN BRIAN KIPPING

BETWEEN

GERALD ERRINGTON SHARROCK

Judgment Creditor

AND

JOHN BRIAN KIPPING

Judgment Debtor

Hearing:

19 May 2020

(On the papers)

Counsel:

R B Hucker and M W Swan for Judgment Creditor J B Kipping (self-represented Judgment Debtor)

D M L Dingwall for Official Assignee

Judgment:

19 May 2020

JUDGMENT OF ASSOCIATE JUDGE LESTER

(costs judgment)

This judgment was delivered by me on 19 May 2020 at 12.00pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar 19 May 2020

SHARROCK v KIPPING [2020] NZHC 1037 [19 May 2020]

[1]                  On 24 April 2020, I issued a judgment dismissing Mr Kipping’s application for early discharge from bankruptcy.1 I also recorded in the judgment that Mr Kipping withdrew an annulment application which was also scheduled for hearing.

[2]                  Mr Sharrock, the judgment creditor, whose application led to Mr Kipping being adjudicated bankrupt, opposed both applications. Mr Sharrock now seeks costs.

[3]                  Mr Kipping has filed submissions opposing costs which do not really engage with the principles upon which the Court determines costs.

[4]                  The normal rule is that costs follow the event. Mr Kipping was unsuccessful in the application he pursued, and the annulment application was only withdrawn at the hearing, by which time Mr Sharrock had responded to it.

[5]                  I see no reason, and Mr Kipping does not suggest one, as to why costs should not follow the event.

[6]                  The real issue is quantum. Mr Sharrock seeks indemnity costs on the grounds that he considers Mr Kipping’s applications were hopeless and run for a collateral purpose, namely to cause Mr Sharrock increased costs.

[7]                  In the alternative, an uplift of 50 per cent over scale costs on a 2B basis is sought on the grounds that Mr Kipping took or pursued points without merit.

[8]                  While I consider that in some respects Mr Kipping did pursue his claim for an ulterior purpose, that is to have the ability to cross-examine Mr Sharrock on historical matters, when the matters of concern that prompted his wish to wish to cross-examine Mr Sharrock were addressed at the hearing, Mr Kipping withdrew his application to cross-examine Mr Sharrock.

[9]                  Similarly, I consider Mr Kipping adopted a reasonable approach in withdrawing his annulment application. I do not consider that in respect of those steps

1      Sharrock v Kipping [2020] NZHC 799.

Mr Kipping acted vexatiously, frivolously or improperly which is one of the circumstances in which the Court can award indemnity costs.2

[10]              In respect of the early discharge argument, Mr Kipping’s argument was, in    a nutshell, that it did not make economic sense for him to be kept in bankruptcy. That was an argument I did not  accept,  but  it  was  an  argument  which,  in  my view, Mr Kipping considered was a genuine one rather than an argument he ran just for the sake of causing costs to Mr Sharrock.

[11]              That  said,  Mr Kipping’s  arguments  were  not   supported   by  authority. Mr Kipping represented himself and did not really attempt to put a legal framework around his applications. Essentially, Mr Kipping’s argument lacked merit to such an extent that I consider increased costs are warranted.3 I concluded that the application for early discharge failed by some margin.

[12]              In my view, an award of scale costs on a 2B basis with a 50 per cent uplift as quantified in the  affidavit  of  Ms Campbell  dated  1  May  2020  is  appropriate.  Mr Kipping did not take issue with the costs calculation presented, nor did Mr Kipping take issue with the disbursements claimed.

[13]Accordingly, there is an award of costs in favour of Mr Sharrock in the sum of

$16,849.50 being 2B costs plus a 50 per cent uplift, together with disbursements     of $1,925.83.

Associate Judge Lester

Solicitors:
Hucker Associates, Auckland

Copy to:
Mr J Kipping, self-represented

2      High Court Rules 2016, r 14.6(4)(a).

3      High Court Rules 2016, r 14.6(3)(b)(ii).