Wine Country Credit Union v Dugh HC Auckland CIV-2010-441-667

[2011] NZHC 66

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CIV-2010-441-667

BETWEEN  WINE COUNTRY CREDIT UNION Plaintiff

ANDSATNAM SINGH DUGH First Defendant

ANDCSUN LIMITED Second Defendant

Judgment:      1 March 2011

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

This judgment was delivered by Associate Judge Gendall on 1 March 2011 at 4.00 pm under r 11.5 of the High Court Rules.

Solicitors:           Hansen & Bate, Lawyers, PO Box 235, Hastings 4156

Alan Cressey, PO Box 7122, Taradale

WINE COUNTRY CREDIT UNION V SS DUGH & ANOR HC NAP CIV-2010-441-667 [1 March 2011]

Introduction

[1]      This proceeding was the subject of a judgment I issued on 9 December 2010. [2]      That judgment granted summary judgment to the plaintiff against both the

first defendant and the second defendant in the sum of $957,295.85.

[3]      In addition, costs were awarded against the second defendant in my judgment for $12,951.11 and disbursements of $1,124.44.

[4]      Costs against the first defendant were reserved as he had apparently applied for a grant of legal aid for this proceeding but a decision on this was outstanding.

[5]      This judgment now deals with the issue of costs against the first defendant.

[6]      Counsel for the first defendant has filed a memorandum dated 17 January

2011 confirming that legal aid was granted to the first defendant on 23 December

2010.

[7]      As to costs against a legally aided defendant s 40(2) Legal Services Act 2000 provides:

(2)       No  order  for  costs  may  be  made  against  an  aided  person  in  a  civil proceeding unless the Court is satisfied that there are exceptional circumstances.

[8]      On 18 January 2011 registry staff from the Court communicated with counsel for  the  plaintiff  to  invite  him  to  submit  a  memorandum  on  this  costs  issue  in response to the memorandum from counsel for the first defendant filed 17 January

2011.   Mr Bate, counsel for the plaintiff indicated he was not intending to file a memorandum and accepted what counsel for the first defendant had stated in his memorandum.

[9]      That said, there is nothing before me to indicate that this is a situation where exceptional circumstances might exist such that an order for costs should be made now against the first defendant as a legally aided person.

[10]     I conclude therefore that no order for costs is to be made against the first defendant.

[11]     Notwithstanding this conclusion, I note that s 40(5) Legal Services Act 2000 provides:

5.        If, because of the section, no order for costs is made against the aided person, an order may be made specifying what order for costs would have been made against that person with respect to the proceedings if this section had not affected that person’s liability.

[12]     That said, in my view, it is appropriate for such an order to be made here. Thus, I now make an order specifying that costs (on an actual solicitor/client costs basis) totalling $12,951.11 and disbursements totalling $1,124.44 would have been ordered against the first defendant on the plaintiff ’s successful summary judgment application here if s 40 Legal Services Act 2000 had not affected the first defendant’s liability.

‘Associate Judge D.I. Gendall’