Yarrow v Pettigrew

[2013] NZHC 2149

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-443-315 [2013] NZHC 2149

BETWEEN

PAUL STEVEN YARROW

Plaintiff

AND

COLIN RITCHIE PETTIGREW

First Defendant

DUNCAN DOVICO (NZ) LIMITED
Second Defendant

DUNCAN DOVICO TRUSTEES LIMITED AND PUAL STEVEN YARROW

Third Defendants

Hearing:	On the papers
Judgment:	22 August 2013

COSTS JUDGMENT OF ASSOCIATE JUDGE SARGISSON

This judgment was delivered by me on Thursday 22 August 2013 at 4.30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date:………………………….

Counsel:

J Campion, Barrister, Auckland. Email: [email protected] A R Gilchrist, Barrister, Auckland. Email: [email protected]

S Lucas, Kennedys, Auckland.  Email: [email protected]

YARROW v COLIN PETTIGREW [2013] NZHC 2149 [22 August 2013]

[1]      I have the memorandum of counsel for the second defendant as to costs dated 6 August 2013 and the memorandum of the plaintiff in reply dated 19 August 2013.

[2]   Under the statutory costs regime costs follow the event in accordance with the principle set out in High Court Rule 14.2(a); subject, however, to the Court’s overall discretion.1

[3] Counsel for the plaintiff submits that deferring costs  would  avoid  the potential need to make a later decision under r 14.8(2) to reverse or vary an order for costs on an interlocutory application if the plaintiff enjoys ultimate success and the Court is satisfied subsequently that the original order should not have been made.

[4]      I see no reason in this case not to fix costs in accordance with the principle in r 14.2(a)..   However, I accept that it is reasonable to depart from the principle in r 14.8(1)(b) that costs become payable when they are fixed though not for the reason counsel submits.  There are special reasons in this case to defer payment of costs:

[a]The plaintiff is admittedly impecunious, a factor the parties seeking security for costs have relied upon; and

[b]He is required to make security for costs which have been fixed at a level that is intended to afford some reasonable compensation to the defendants if they are successful while preserving the possibility that the plaintiff can proceed with his claim. Payment of an additional sum at this stage may well undermine that possibility.

[5]      There is no dispute as to quantum.  Accordingly I make these orders:

[a]The plaintiff is to pay the second defendant costs on its application for security for costs in the amount of $7,590.50 inclusive of disbursements of $725.

1       See High Court Rule 14.1.

[b]These costs become payable at the conclusion of this proceeding or at such earlier time as the Court orders.

[c] Leave is reserved to seek further orders by way of memorandum on two days notice for the earlier payment of costs should that be justified.

H Sargisson Associate Judge