Westpac New Zealand Limited (1763882) v Duggal

[2012] NZHC 2998

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2012-419-249 [2012] NZHC 2998

UNDER  Part 12 of the High Court Rules

IN THE MATTER OF     an application for summary judgment

BETWEEN  WESTPAC NEW ZEALAND LIMITED (1763882)

Plaintiff

ANDPANKAJ DUGGAL AND KAMLESH DUGGAL AS TRUSTEES OF THE AMAR SANT FAMILY TRUST Defendants

(On the papers)

Counsel:         BJ Upton for plaintiff

Appearance:    P Duggal, first-named defendant in person

Judgment:      13 November 2012

JUDGMENT OF ASSOCIATE JUDGE FAIRE [on costs]

Solicitors:           Simpson Grierson, Private Bag, 92 518, Auckland

And To:             P and K Duggal, 30B Glenview Terrace, Hamilton

WESTPAC NEW ZEALAND LIMITED (1763882) VP DUGGAL AND K DUGGAL AS TRUSTEES OF THE AMAR SANT FAMILY TRUST HC HAM CIV-2012-419-249 [13 November 2012]

[1]      On 20 August 2012 I struck out the plaintiff’s proceeding.  The proceeding had sought judgment against the two trustees of the Amar Sant Family Trust.  The plaintiff accepted that the defendants in this proceeding were independent trustees and that it was not appropriate to proceed and therefore filed a notice of discontinuance. That led to my order striking out the proceeding.

[2]      The defendants and counsel for the plaintiff were alerted by me to the long- standing position adopted by the Court and which has its foundation in the judgment re Collier (a bankrupt).[1]    That case held that there is an established rule in New Zealand that a lay litigant is not entitled (except in exceptional cases) to recover costs, although the Court has a discretion to allow disbursements.

[1] re Collier (a bankrupt) [1996] 2 NZLR 438 (CA), (1996) 10 PRNZ 145.

[3]      There are no exceptional circumstances in this case.  Mr Duggal, on behalf of the other defendant, argued, however, that the foundation for the rule set by re Collier was questionable and that the time had been reached where the general scale of allowed costs contained in Part 14 of the High Court Rules should be allowed.  In short, he submitted that if a party was successful that party should enjoy an order for costs irrespective of whether the party employs a person on the roll of barristers and solicitors to act for that successful party.

[4]      Mr Duggal has referred to the refinements to the High Court Rules that have been developed since the leading authorities pronounced on this subject.

[5]      The  leading  authority  is  the  Court  of Appeal  judgment  in  re  Collier  (a bankrupt).  I do not regard any of the changes as indicating a change in the general rule which was adopted by the Court of Appeal.   I am bound by decisions of the Court of Appeal and do not consider I have any justification for the reasons that are set out in Mr Duggal’s paper for not following it.

[6]      Accordingly, I conclude that it is not appropriate that any cost order be made in  favour  of  the  defendants  in  this  case.    The  defendants  are  entitled  to  their

reasonable  disbursements.    That  is  acknowledged  responsibly  by  the  plaintiff’s

counsel in the memorandum that has been filed.

[7]      Accordingly,  I  order  that  the  defendants  are  entitled  to  their  reasonable disbursements as submitted and approved by the Registrar.

JA Faire

Associate Judge