Station Properties Limited (in rec) v Kumar HC Auckland CIV 2009-404-000354

[2011] NZHC 829

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2009-404-000354

BETWEEN  STATION PROPERTIES LIMITED (IN RECEIVERSHIP)

Plaintiff

ANDVIKRAM KUMAR NIRUPAMA KUMAR Fourth Defendants

ANDROBERT JAMES SELWYN Fifth Defendant

AND  MICHAEL DONALDSON

PATRICIA BRONWYN DONALDSON Sixth Defendants

Hearing:         Telephone Conference - 17 June 2011

Counsel:         J S Cooper and S East for the Plaintiff

R Kelly and Ms Jarvis for the Fourth, Fifth and Sixth Defendants
M J Tingey for BOS International (Australia) Limited

Judgment:      2 August 2011 at 3:00 PM

[COSTS] JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie on 2 August 2011 at 3.00 pm

Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Distribution:
J S Cooper:  [email protected]
R Kelley:  [email protected]

M J Tingey: [email protected]

STATION PROPERTIES LIMITED (IN RECEIVERSHIP) V V KUMAR & ORS HC AK CIV 2009-404-000354

2 August 2011

[1]      I refer to my judgment issued on 21 June 2011 inviting the parties to agree on the quantum of costs payable by the defendants to the plaintiff.

[2]      The parties have been able to reach agreement on most matters.  The only outstanding issue is whether the plaintiff should be entitled to separate costs in preparing notices of opposition to the defendants’ application for review, and to the defendants’ application for non-party discovery, when the  grounds of opposition were contained in the one document.

[3]      The plaintiff says that there were two discreet substantive applications made by the defendants, and that the plaintiff opposed both.  It asserts that there was no overlap in the grounds of opposition, and that the only common feature was that both notices of opposition to both applications were contained in the one document.  The defendants say that it was implicit that notices of opposition were not required, and that, in any event, the plaintiff is seeking to recover twice, because it filed only one document.

[4]      I prefer the plaintiff ’s view.

[5]      Here, there were two separate applications by the defendants.  The plaintiff opposed both.  It detailed its grounds of opposition to both applications, and it set out its opposition to both applications in the one document.   Time would have been required in considering both applications, in determining whether or not to oppose the same, and in determining the grounds for opposition. Whether or not the grounds of opposition were set out within one document or not is irrelevant.

[6]      Accordingly, I approve the schedule as to costs attached to the plaintiff’s

submissions.

[7]      The defendants have also suggested that the costs awarded should be paid into Court, rather than to the plaintiff, as additional security for costs.

[8]      Such an order is inappropriate.  The issue of security for costs has already been dealt with, and it is entirely separate from the issue of costs to be paid by the

defendants to the plaintiff in relation to the defendants’ unsuccessful interlocutory applications.    The  plaintiff  has  already  paid  into  Court  as  security  the  sum  of

$100,000 pursuant to an order made by Associate Judge Doogue on 5 October 2010. That order followed a joint memorandum of counsel dated 29 September 2010 which set out the parties’ agreement in that regard.  If the defendants wish to seek further security, then the appropriate course is for them to make separate application in that

regard.

Wylie J