Strategic Finance Limited v Henderson HC Christchurch CIV 2009-409-1731

[2010] NZHC 1950

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2009-409-001731

BETWEEN  STRATEGIC FINANCE LIMITED Plaintiff

ANDDAVID IAN HENDERSON Defendant

Counsel:         M J Tingey and NFD Moffatt for Plaintiff

A J Forbes QC and K W Clay for Defendant

Judgment:      6 October 2010

JUDGMENT OF HON. JUSTICE FRENCH

as to Costs

[1]      On 16 August 2010 I granted Strategic Finance Limited’s application for summary judgment.  Judgment was entered against Mr Henderson under a guarantee for the sum of $2,370,126.95.

[2]      As regards costs, I held that those were reserved, stating:

[51]      … Counsel are to engage in discussion regarding costs, with a view to resolving same.   Failing agreement, Mr Tingey is to file submissions within 10 working days, with any reply submissions within five working days thereafter.

[3]      Unfortunately, counsel have not been able to resolve costs.  Mr Tingey filed a memorandum on 30 August 2010.  No reply submissions have been received.

STRATEGIC FINANCE LIMITED V HENDERSON HC CHCH CIV-2009-409-001731  6 October 2010

[4]      Strategic applies for indemnity costs in the sum of $37,000 together with disbursements of $2738.36.   It does so in reliance on a provision in the deed of guarantee at issue.  The relevant clause states:

The Guarantor will pay each cost incurred by Strategic in connection with:

…

(c)       the  exercise,  protection  or  enforcement  of  Strategic’s  or  any

Lender’s rights under this Deed,

in each case on demand and on a full indemnity basis.

[5]      Rule 14.6 High Court Rules relevantly states:

Despite rules 14.2 to 14.5, the Court may make an order

(b)that  the  costs  payable  are  the  actual  costs,  disbursements,  and witness expenses reasonably incurred by a party (indemnity costs).

[6]      I am satisfied that the wording of the clause entitles Strategic to obtain actual legal costs incurred in protecting and enforcing its rights under the guarantee.

[7]      In support of the application, Strategic has filed an affidavit providing details as to the solicitors who acted in relation to the proceeding, the charge-out rate for those solicitors, the tasks undertaken by the solicitors and the amount of time taken.

[8]      I  am  satisfied  the  costs  claimed  were  reasonably  incurred  in  enforcing

Strategic’s rights under the guarantee.

[9]      I therefore order that Mr Henderson pay Strategic costs of $37,000 together with disbursements of $2738.36.

Solicitors:

Bell Gully, Auckland

Cousins & Associates, Christchurch

(Counsel: A J Forbes QC, Christchurch)