Tawanui Developments Limited v Harnett HC Palmerston North CIV-2008-454-949

[2010] NZHC 2362

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CIV-2008-454-949

BETWEEN  TAWANUI DEVELOPMENTS LIMITED Plaintiff

ANDDEAN MICHAEL HARNETT AND JOHN COLIN MALCOLM

First Defendants

ANDDEAN MICHAEL HARNETT Second Defendant

Judgment:      26 November 2010 at 3.45 pm

JUDGMENT AS TO COSTS OF ASSOCIATE JUDGE D.I. GENDALL

This judgment is delivered by Associate Judge Gendall on 26 November 2010 at 3.45 pm under r 11.5 of the High Court Rules.

Solicitors:           Fitzherbert Rowe, Lawyers, Private Bag 11016, Palmerston North

TAWANUI DEVELOPMENTS LIMITED V DM HARNETT AND JC MALCOLM AND ANOR HC PMN CIV-2008-454-949  26 November 2010

[1]      On 20 August 2010 I gave judgment in this proceeding in favour of the plaintiff against the first and second defendants for damages and costs.   In that judgment  the  plaintiff  was  awarded  indemnity  costs  against  the  defendants  in relation to the enforcement of the order for specific performance subject to further evidence being provided as to the quantum of those costs.

[2]      At para [48] of that judgment  I set out a timetable for the provision  of

Memoranda from the parties regarding the question of indemnity costs.

[3]      Counsel for the plaintiff filed a memorandum on this issue dated 3 September

2010.

[4]      The defendants were then to have until 17 September 2010 to file and serve their reply Memorandum but it appears no such reply was filed by the defendants.

[5]      On 7 October 2010 I issued a Minute giving the defendants a further period of time until 15 October 2010 to file and serve their reply Memorandum on this indemnity costs issue.

[6]      No  such  Memorandum  in  reply  has  been  provided  on  behalf  of  the defendants.

[7]      In my 7 October 2010 minute at para [5](b) I indicated that subsequent to 15

October 2010 the Registrar was to refer this matter and all Memoranda to me in order that I could then fix the quantum of such indemnity costs to be paid to the plaintiff.  That has now occurred.

[8]      I have now had an opportunity to consider the Memorandum from counsel for the plaintiff together with the accompanying affidavit of Peter Joseph Broczek in support of the application.

[9]      Mr Broczek, who is the solicitor to the plaintiff, deposes in his 3 September

2010 affidavit that the costs in question which are claimed are limited to obtaining charging orders over the properties owned by the defendants and to the writ of sale process.   Costs for the application for a writ of sequestration and the bankruptcy

proceedings  as  well  as  for  the  application  to  vacate  the  order  for  specific performance and the application for damages and costs are excluded.

[10]     The  total  indemnity  costs  now  sought  by  the  plaintiffs  are  therefore

$17,049.63.

[11]     I have now had an opportunity to consider the tax invoices for the costs in question provided by the plaintiff (as exhibits to the affidavit of Mr Broczek).  I am satisfied that the costs sought here are limited to work carried out for the charging orders and the writ of sale process and, under the circumstances, those costs claimed appear to be reasonable and appropriate under all the circumstances.

[12]     Given that the defendants have provided no Memoranda regarding this issue and do not dispute any of the plaintiff’s evidence before the Court on this costs question, I am satisfied here that the information provided is sufficient to support an award of indemnity costs for the amount of $17,049.63 sought by the plaintiffs.

[13]     An order is now made that the defendants are to pay to the plaintiff the sum of $17,049.63 as indemnity costs in relation to the enforcement of the order for specific performance here.

[14]     In addition reasonable disbursements as approved by the Registrar are to be paid by the defendants to the plaintiff.

[15]     One other matter has been raised by counsel for the plaintiff.  As I understand the position there are certain remaining funds in this matter which are held in this Court  by  the  Registrar.    They  amount  to  about  $7,000.00  as  I  understand  the position.

[16]     An order is now made that the balance funds held in this matter by the Registrar of about $7,000.00 together with all interest thereon is to be paid by the Registrar to the plaintiff as a part-payment of the present award of indemnity costs.

‘Associate Judge D.I. Gendall’