Thurlow v Clements

[2013] NZHC 2964

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2009-404-002849 [2013] NZHC 2964

BETWEEN  CLIFFORD FRANK THURLOW Plaintiff

ANDLAYLA KATHLEEN CLEMENTS Defendant

On the papers

Date:  8 November 2013

COSTS JUDGMENT OF GILBERT J

This judgment was delivered by me on 8 November 2013 at 4.30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:

CLIFFORD FRANK THURLOW v LAYLA KATHLEEN CLEMENTS [2013] NZHC 2964   [8 November

2013]

[1]      Ms Clements seeks an award of costs in the sum of $2,538 following my order striking out this proceeding on 10 October 2013.

[2]      The proceeding was settled by a deed signed by the parties on 14 June 2011. Clause 5 of the deed provided:

The  parties  agree  that  the  execution  of  this  Deed  is  in  full  and  final settlement of all issues and difficulties arising between them as at the date of the  execution  of  this  Deed  whether  raised  in  the  proceedings  and/or otherwise.

[3]      On  15  June  2011,  Mr  Hucker  and  Mr  Siu,  who  were  then  acting  for Ms Clements, attended Court with counsel for Mr Thurlow and advised the Court that the proceeding had settled and that no orders were required from the Court. Counsel advised that Mr Thurlow would file a notice of discontinuance.

[4]      Mr  Thurlow  reneged  on  the  settlement  and  did  not  file  a  notice  of discontinuance.  As a result of this, Ms Clements commenced new proceedings in this  Court  under  CIV  2012-404-002725  to  enforce  the  settlement  agreement. Ms Clements succeeded in that proceeding and has recovered the resulting judgment debt following the sale of a property owned by the parties.

[5]      Despite the issue of costs in the present proceeding having been resolved by the settlement, Mr Pidgeon argues that costs should be allowed for the steps taken in this proceeding after the settlement agreement was signed.

[6]      I accept that Ms Clements is entitled to the scale 2B costs sought in respect of the steps taken to have the proceedings  struck  out.   These steps were required because Mr Thurlow failed to file a notice of discontinuance.  The scale costs sought in respect of these steps amount to $1,128.

[7]      However, the other costs sought relate to the appearances by Messrs Hucker and Siu at Court on 15 June 2011 when they advised Allan J that the proceeding had settled and that no orders were required from the Court.   In my view, those costs cannot be claimed from Mr Thurlow because they are covered by the settlement agreement.

[8]      Accordingly, I make an order directing Mr Thurlow to pay Ms Clements’

costs in relation to her application to strike out this proceeding in the sum of $1,128.

M A Gilbert J