Spak (1996) Limited v Leroy

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-1483

[2021] NZHC 3278

BETWEEN

SPAK (1996) LIMITED

Plaintiff

AND

REECE LEROY

Defendant

AND

BODY CORPORATE 407404

Third Party

Hearing:	(On the papers)
Judgment:	2 December 2021

COSTS JUDGMENT OF VENNING J

This judgment was delivered by me on 2 December 2021 at 11.00 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Russell McVeagh, Auckland

K3 Legal Ltd, Auckland

Wotton & Kearney Ltd, Auckland

SPAK (1996) LIMITED v REECE LEROY [2021] NZHC 3278 [2 December 2021]

Introduction

[1]                 In a judgment delivered on 14 September 2021 Associate Judge Bell granted the defendant Reece Leroy’s applications for summary judgment and strike out against the plaintiff.1 On the issue of costs the Court noted that:

[113] Provisionally it appears that in light of the [plaintiff’s] conduct in this proceeding, ordinary scale costs will not be adequate and that an upward adjustment is appropriate.

[2]                 The Judge subsequently retired. The file has been referred to me as duty Judge to fix costs.

[3]There are several heads of costs that require consideration:

(a)costs on the defendant’s successful summary judgment and strike out applications;

(b)costs on the plaintiff’s withdrawn application to hold the defendant in contempt of court;

(c)costs on the plaintiff’s withdrawn application for unless orders against the defendant; and

(d)the third party’s costs.

Third party costs

[4]                 In its minute of 9 November 2021 the Court raised with the parties, (including the third party) if the third party claim was to be discontinued given the success of the defendant’s summary judgment and strike out applications, and if so, whether there were costs arising out of that to be addressed. I thank counsel for their memoranda in response.

[5]                 As the plaintiff has appealed the decision of Associate Judge Bell the defendant wishes to maintain the third party claim pending the outcome of that appeal. The third

1      Spak (1996) Ltd v Leroy [2021] NZHC 2398.

party challenges whether that is necessary but, having put the parties on notice as to its position, does not take the matter further. The defendant and plaintiff are content for the issue of third party costs to be adjourned to the new year.

[6]                 I reserve the issue of the third party’s position in relation to its costs and any subsequent costs between the plaintiff and defendant in relation to the third party’s position accordingly.

The plaintiff’s application for an unless order

[7]                 On 25 March 2021 Gordon J had made a costs order against the defendant in favour of the plaintiff in the sum of $4,780.00.2 On 1 April 2021 the plaintiff through its solicitors made demand for payment. The defendant did not pay immediately. On 22 April 2021 the plaintiff brought an application in which it sought:

(a)an order holding the defendant in contempt of Court for breach of an injunction order earlier granted by Davison J;3 and

(b)an unless…