ALPINE SOUTH FISHING LIMITED (in Receivership) v CHOI [2018] NZHC 3253

ALPINE SOUTH FISHING LIMITED (in Receivership) v CHOI [2018] NZHC 3253

Items 22/23 of Schedule 2, which govern interlocutory applications, include the preparation of affidavits in support of and in opposition to interlocutory applications so item 30 (trial preparation) does not apply; the Court cannot use the general discretion in r14.1 to award a separate allocation under item 30 where the specific rules contemplate the step; however, because of the complexity and volume of affidavit material the first defendant demonstrated that band B was insufficient and was entitled to band C for item 23 (2 days at $2,230), translator fees supported as disbursement, and costs on the costs application to lie where they fall.

Citation
[2018] NZHC 3253
Parties
First Plaintiff: Alpine South Fishing Limited (in Receivership); Second Plaintiff: Hyun Choi; First Defendant: Sang Hee Kim; Second Defendants: Ian Andrew Nellies & Keith Vincent Harris (As Receivers of Alpine South Fishing Limited in Receivership)
Court
High Court
Jurisdiction
New Zealand
Judgment Date
11 December 2018
Procedural Posture
Interlocutory Application for Summary Judgment and Subsequent Costs Assessment / Costs Assessment Following Dismissal of Interlocutory Application
Outcome
Costs awarded to the first defendant in part: item 23 set at band C (2 days at $2,230 per day); item 30 disallowed; translator fees certified; costs on the costs application to lie where they fall.
Legal Topics
Interlocutory Applications, Summary Judgment, Costs Assessment, Affidavit Preparation, Translation/disbursement Recovery
Civil Procedure Costs Insolvency/receivership Commercial Litigation Interlocutory Applications Summary Judgment Costs Assessment Affidavit Preparation +1 more

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Parties

Alpine South Fishing Limited (in Receivership)

First Plaintiff

Hyun Choi

Second Plaintiff

Sang Hee Kim

First Defendant

Ian Andrew Nellies & Keith Vincent Harris (As Receivers of Alpine South Fishing Limited in Receivership)

Second Defendants

Procedural Posture

Interlocutory Application for Summary Judgment and Subsequent Costs Assessment / Costs Assessment Following Dismissal of Interlocutory Application

Legal Issues

  1. 1 Whether Schedule 2 item 23 for interlocutory applications includes preparation of affidavits
  2. 2 Whether Schedule 2 item 30 could be claimed in addition to item 23 for affidavit preparation
  3. 3 Whether the Court may exercise r14.1 discretion to make a separate allocation contrary to specific costs rules

Ratio Decidendi

Items 22/23 of Schedule 2, which govern interlocutory applications, include the preparation of affidavits in support of and in opposition to interlocutory applications so item 30 (trial preparation) does not apply; the Court cannot use the general discretion in r14.1 to award a separate allocation under item 30 where the specific rules contemplate the step; however, because of the complexity and volume of affidavit material the first defendant demonstrated that band B was insufficient and was entitled to band C for item 23 (2 days at $2,230), translator fees supported as disbursement, and costs on the costs application to lie where they fall.

Court Disposition

Costs awarded to the first defendant in part: item 23 set at band C (2 days at $2,230 per day); item 30 disallowed; translator fees certified; costs on the costs application to lie where they fall.

Orders

  • Costs set out at 2.1 of first defendant's memorandum of 1 November 2018 approved subject to amending item 23 to $4,460 (2 days at $2,230)
  • Total costs awarded to first defendant $13,826