DOMINION FINANCE GROUP LIMITED (IN RECEIVERSHIP AND IN LIQUDATION) V DYSON SMYTHE & GLADWELL HC AK CIV-2009-404-5197
Indemnity costs were refused because the Court found no dishonourable or egregious conduct and the dispute reflected a bona fide difference of opinion on the scope of the undertaking; accordingly the Court exercised its discretion and awarded costs on a 2B basis.
Source-derived case information.
- Citation
- openlaw-e4b1fd33_fb76_4e27_8d4c_3f088d2b267b.pdf
- Parties
- Plaintiff: Dominion Finance Group Limited (In Receivership and In Liquidation); Defendant: Dyson Smythe & Gladwell
- Court
- High Court
- Jurisdiction
- New Zealand
- Judgment Date
- 14 September 2010
- Procedural Posture
- Civil (high Court) / Costs Hearing / Judgment
- Outcome
- Indemnity costs refused; costs awarded to plaintiff on a 2B basis.
- Legal Topics
- Indemnity Costs, Breach of Undertaking, Costs Scale 2 B
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dominion Finance Group Limited (In Receivership and In Liquidation)
Plaintiff
Dyson Smythe & Gladwell
Defendant
Procedural Posture
Civil (high Court) / Costs Hearing / Judgment
Legal Issues
- 1 Whether indemnity costs should be awarded for alleged breach of solicitor's undertaking
- 2 Whether the conduct amounted to dishonourable conduct warranting indemnity costs
- 3 Appropriate scale of costs to be awarded
Ratio Decidendi
Indemnity costs were refused because the Court found no dishonourable or egregious conduct and the dispute reflected a bona fide difference of opinion on the scope of the undertaking; accordingly the Court exercised its discretion and awarded costs on a 2B basis.
Court Disposition
Indemnity costs refused; costs awarded to plaintiff on a 2B basis.
Orders
- Costs awarded to the plaintiff on a 2B basis.
- No order required authorising release of funds from the solicitor's trust account as parties have agreed that matter.
Full Case Text
Judgment text and source record
1 paragraphs
DOMINION FINANCE GROUP LIMITED (IN RECEIVERSHIP AND IN LIQUDATION) V DYSON SMYTHE & GLADWELL HC AK CIV-2009-404-5197 14 September 2010IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV-2009-404-5197BETWEEN DOMINION FINANCE GROUP LIMITED (IN RECEIVERSHIP AND IN LIQUDATION) Plaintiff AND DYSON SMYTHE & GLADWELL Defendant Hearing: 19 May 2010 Appearances: R J T Robertson for plaintiff (on papers) G D Wadsworth for defendant (on papers) Judgment: 14 September 2010 at 4 p.m.JUDGMENT OF ASSOCIATE JUDGE DOOGUE [on Costs]This judgment was delivered by me on14.09.10 at 4 pm, pursuant to Rule 11.5 of the High Court Rules. Registrar/Deputy Registrar DateSolicitors:Stace Hammond, P O Box 19-101, Hamilton – by email: rosemaryr@shg.co.nzKennedys, P O Box 3158, Auckland – by email: g.wadsworth@kennedys-law.co.nz[1] I thank counsel for their memoranda on the matter of costs. [2] I do not agree that this is a case where indemnity costs ought to be awarded. I do not consider that there is any presumption that a claim based upon a solicitor's undertaking will normally attract an award of costs on an increased or indemnity basis. As Mr Wadsworth noted, r 14.6 establishes that a breach of undertaking is one of the cases where the Court may order indemnity costs but it does not have to. One of the reasons why such cases potentially attract indemnity costs is that they involve dishonourable conduct. But in this case there is no such element present. There was a bona fide difference of opinion as to the scope of the undertaking that was given. [3] I therefore conclude that costs should be on a 2B basis. [4] I understand that no order is required authorising the plaintiff's solicitor to release the funds held in the solicitor's trust account on account of security for costs because that matter is now the subject of agreement between the parties. _____________ J.P. Doogue Associate Judge