TSB Bank Limited v Burgess

[2016] NZHC 859

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2010-009-2978 [2016] NZHC 859

BETWEEN

TSB BANK LIMITED

Plaintiff

AND

GARY OWEN BURGESS Defendant

Counsel:

J Carnie for Plaintiff

Defendant - Self Represented

Judgment:

24 March 2016

Reissued:

3 May 2016

JUDGMENT OF GENDALL J (As to Costs)

Note:  This judgment has been recalled to make minor amendments to the date in line 1, para 1, the category specified in line 2, para 7, and proper completion of the MNC Number. This document is the final amended version.

[1]      On 10 December 2013 I granted judgment in this proceeding to the plaintiff TSB Bank Limited (TSB) against the defendant Gary Owen Burgess (Mr Burgess). In doing so at para [123] of that judgment I awarded TSB indemnity solicitor and client costs on the proceeding together with disbursements, such amounts to be approved by the Registrar.

[2]      Subsequently Mr Burgess appealed the judgment, including the award of indemnity costs, to the Court of Appeal and the Supreme Court but these appeals were dismissed. The award of indemnity costs in favour of TSB was affirmed.

[3]      It seems that TSB deferred quantifying costs pending the outcome of those appeals  but  now,  given  that  they have  all  been  dismissed, TSB now  wishes  to

quantify its costs.

TSB BANK LIMITED v BURGESS [2016] NZHC 859 [24 March 2016]

[4]      Memoranda have been filed by counsel for TSB dated 12 February 2016 and

21 March 2016.   In response, Mr Burgess has filed his memorandum as to costs dated 15 March 2016.

[5]      I have now had an opportunity to consider those memoranda which have been filed and give this decision which relates solely to the quantum of costs to be awarded to the TSB with respect to this matter.

[6]      In this regard, TSB has chosen in this case to seek by way of indemnity costs the sum of $29,892 together with disbursements, being a High Court filing fee of

$1329.20.

[7]      In seeking a costs award of $29,892 TSB has chosen to calculate this amount on a category 2B scale basis representing 15.9 days at a daily recovery rate of $1880. Counsel for TSB states that its true indemnity costs with respect to this matter are significantly in excess of this figure of $29,892 and given what has been involved in this matter, including its history and all questions involved at trial, I am satisfied that this is the case.

[8]      In his memorandum dated 21 March 2016 counsel for TSB has explained the reason why TSB is willing to accept quantification of its indemnity costs on this partial indemnity basis by reference to scale costs only.  This is a matter for TSB and I accept its decision to seek only part of its costs which, of course, is of benefit to Mr Burgess.

[9]      As I have noted, in response, Mr Burgess has filed his memorandum on costs dated 15 March 2016.   I have now had an opportunity to carefully consider the matters he raises and must say that there is nothing of significance or substance which he advances to in any way dispute the quantum of the costs award sought by TSB here.  TSB, in my view, acted properly throughout this proceeding, it has made no claim for second counsel (despite the contention by Mr Burgess to the contrary), and his other arguments are confusing and without substance.

[10]     I conclude, therefore, that TSB is entitled to costs which it seeks with respect to this proceeding totalling $29,892 and disbursements totalling $1329.20, and an order that these sums are to be paid by Mr Burgess is now made.

...................................................

Gendall J

Solicitors:

Clendons, Auckland

Copy to Defendant