LICENCED ASSETS LIMITED V RATILAL BHIKHABHAI PATEL AND NAGINBHAI GHELABHAI PATEL HC WN CIV-2009-485-1878
Because the plaintiff failed to comply with the security for costs order and did not appear, the proceeding was rightly struck out; accordingly the defendants, as the successful party, are entitled to costs on a 2B basis plus disbursements fixed by the Registrar, and the plaintiff's insolvency or unsecured creditor...
Source-derived case information.
- Citation
- openlaw-28cc199f_8594_4b70_bd24_7821152d3760.pdf
- Parties
- Plaintiff: Licenced Assets Limited; Defendant: Ratilal Bhikhabhai Patel; Defendant: Naginbhai Ghelebhai Patel
- Court
- High Court
- Jurisdiction
- New Zealand
- Judgment Date
- 26 January 2011
- Procedural Posture
- Relief Against Forfeiture of a Lease / Costs Determination Following Striking Out for Failure to Comply With Security for Costs Order
- Outcome
- Proceeding struck out; costs awarded to defendants on a 2B basis plus disbursements as fixed by the Registrar.
- Legal Topics
- Forfeiture of Lease, Security for Costs, Striking Out, Costs Awards, 2 B Costs Scale, Receivership Consequences
Source-derived case record
Summary, issues, holding and outcome
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Parties
Licenced Assets Limited
Plaintiff
Ratilal Bhikhabhai Patel
Defendant
Naginbhai Ghelebhai Patel
Defendant
Procedural Posture
Relief Against Forfeiture of a Lease / Costs Determination Following Striking Out for Failure to Comply With Security for Costs Order
Legal Issues
- 1 Effect of failure to comply with security for costs order
- 2 Entitlement to costs where plaintiff in receivership and will rank as unsecured creditor
- 3 Appropriate scale of costs following striking out
Ratio Decidendi
Because the plaintiff failed to comply with the security for costs order and did not appear, the proceeding was rightly struck out; accordingly the defendants, as the successful party, are entitled to costs on a 2B basis plus disbursements fixed by the Registrar, and the plaintiff's insolvency or unsecured creditor status of defendants does not preclude the costs award.
Court Disposition
Proceeding struck out; costs awarded to defendants on a 2B basis plus disbursements as fixed by the Registrar.
Orders
- Proceeding struck out on 16 November 2010 for failure to comply with security for costs order dated 2 November 2010.
- Defendants awarded costs on a 2B basis plus disbursements to be fixed by the Registrar.
Full Case Text
Judgment text and source record
1 paragraphs
LICENCED ASSETS LIMITED V RATILAL BHIKHABHAI PATEL AND NAGINBHAI GHELABHAI PATEL HC WN CIV-2009-485-1878 26 January 2011IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV-2009-485-1878BETWEEN LICENCED ASSETS LIMITED Plaintiff AND RATILAL BHIKHABHAI PATEL AND NAGINBHAI GHELABHAI PATEL Defendants Judgment: 26 January 2011 at 3.00 pmJUDGMENT AS TO COSTS OF ASSOCIATE JUDGE D.I. GENDALLThis judgment was delivered by Associate Judge Gendall on 26 January 2011 at 3.00 pm under r 11.5 of the High Court Rules.Solicitors: Wells & Co, Solicitors, PO Box 28390, Remuera, Auckland Guy & Toby Manktelow, Solicitors, PO Box 31-265, Lower Hutt, Wellington[1] This was a proceeding for relief against forfeiture of a lease. The plaintiff is presently in receivership. On 16 November 2010, an order was made striking out the plaintiff's proceeding because the plaintiff had failed to comply with an order for security for costs dated 2 November 2010. There was no appearance for the plaintiff. Costs were reserved. [2] The defendants have filed a memorandum as to costs, seeking an order for costs against the plaintiff on a 2B basis. The plaintiff had not filed a memorandum. [3] The defendants submit that, although they will rank as an unsecured creditor and the plaintiff apparently has no funds left with which to repay unsecured creditors, there is no reason why costs should not follow the event here. I agree. The plaintiff's proceeding was struck out, and the defendants should therefore be entitled to costs as the successful party in the proceeding. [4] Accordingly, the defendants are awarded costs on a 2B basis plus disbursements as fixed by the Registrar. An order to this effect is now made.'Associate Judge D.I. Gendall'