Taranaki Regional Council v Gibbs

[2020] NZHC 2316

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CIV-2019-443-38

[2020] NZHC 2316

UNDER

the Insolvency Act 2006

IN THE MATTER

of the bankruptcy of Russell Gibbs

BETWEEN

TARANAKI REGIONAL COUNCIL

Judgment Creditor

AND

RUSSELL GIBBS

Judgment Debtor

CIV-2019-443-39

UNDER

the Insolvency Act 2006

IN THE MATTER

of the bankruptcy of Haumoana White

BETWEEN

TARANAKI REGIONAL COUNCIL

Judgment Creditor

AND

HAUMOANA WHITE

Judgment Debtor

Memoranda:

Judgment Debtors in person

S Maskill for Taranaki Regional Council

Judgment:

7 September 2020

COSTS JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

[On the papers]

[1]                  These  two  proceedings  involve  applications  by  the  judgment  debtors,  Mr Russell Gibbs and Mr Haumoana White, for orders pursuant to s 309(1)(a) of the Insolvency Act 2006 for the annulment of their bankruptcies.

TARANAKI REGIONAL COUNCIL v GIBBS [2020] NZHC 2316 [7 September 2020]

[2]                  I dismissed both applications in my judgment of 24 August 2020. I reserved costs, in the expectation that the parties would be able to resolve these. That has not happened. The judgment creditor, the Taranaki Regional Council, now seeks costs.

[3]                  The principles governing costs are well settled. The Court always retains a discretion in relation to costs, which, like all discretions, must be exercised on a principled basis. The starting position is that costs will follow the event, that is to say that the successful party in any case might expect to secure an award of costs. As to quantum, in all but the most exceptional cases, costs are calculated in accordance with the scales in schedules 2 and 3 of the High Court Rules 2016, which are designed to allow partial costs recovery assessed objectively.

[4]                  Mr Maskill for the Council seeks costs on a 2B basis — the reference is to levels 2 and B respectively of schedules 2 and 3 and reflects a middle ground in terms of the costs sought. This seems appropriate in the present case.

[5]                  In their joint memorandum dated 1 September 2019, Mr Gibbs and Mr White refer to other proceedings in which the Council and they are involved. This appears to be by way of explanation for their taking a little longer than they might have wished to file their memorandum. There is no need for any such explanation. The memorandum was filed within a reasonable period of time.

[6]                  Mr Gibbs and Mr White then say that they are pursuing a route identified as open to them in my judgment, that is to say seeking contributions from other members of their hapū with a view to paying the  outstanding  component  of  the  Environment Court costs judgment against them (which amounts to approximately

$8,000), with a view to renewing their application for annulments once that has been paid. Apparently, they have set up a Give-A-Little appeal for this purpose.

[7]                  Mr Gibbs and Mr White did not oppose the classification of the case on a 2B basis for costs purposes, but seek a reduction of the costs award on the basis that the separate proceedings against each of them were heard together.

[8]                  The issue  of  duplication  is  acknowledged  as  being  a  genuine  one  by  Mr Shackleton in his memorandum.

[9]                  Standing back from the matter as best I can, it seems to me that the most appropriate costs order in this case would be for Mr Gibbs and Mr White to be ordered to pay full 2B scale costs in respect of Mr Gibb’s application, together with full disbursements in relation to both applications, and that they be jointly responsible for the total.

[10]Mr Shackleton has calculated the 2B costs of Mr Gibbs’ application at

$8,962.50 and that appears to me to be correct. The disbursements claimed are limited in each case to a filing fee of $110 and therefore total $220.

[11]              I therefore make a costs order (inclusive of disbursements) in favour of the Council in the total sum of $9,182.50. That order is made jointly against Mr Gibbs and Mr White.

[12]              I am satisfied that in the exercise of the Court’s overarching discretion relating to costs, that it is the fairest outcome in the circumstances.

Associate Judge Johnston

Solicitors:

Auld Brewer Mazengarb & McEwen for judgment creditor