MERCEDES-BENZ FINANCIAL SERVICES NZ LTD v CONWAY [2018] NZHC 3098

MERCEDES-BENZ FINANCIAL SERVICES NZ LTD v CONWAY [2018] NZHC 3098 [28 November 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2014-404-1076[2018] NZHC 3098BETWEEN MERCEDES-BENZ FINANCIALSERVICES NEW ZEALAND LTDPlaintiffAND DESMOND JAMES ALBERT CONWAYDefendantHearing: (On the papers)Counsel: B M Stewart for PlaintiffJudgment: 28 November 2018COSTS JUDGMENT OF BREWER JThis judgment was delivered by me on 28 November 2018 at 12:30 pmpursuant to Rule 11.5 High Court Rules.Registrar/Deputy RegistrarSolicitors:Simpson Western (Auckland) for PlaintiffIntroduction[1] This is a costs judgment.[2] On 16 August 2016, Fogarty J held that the plaintiff was entitled to its claimagainst the defendant.1 However, Fogarty J stayed entry of the judgment pending thehearing of the defendant's counterclaim.2 He also reserved the issue of costs.3[3] The defendant appealed Fogarty J's decision. His appeal was dismissed by theCourt of Appeal on 17 October 2017.4[4] The defendant then applied for leave to appeal to the Supreme Court. Theapplication was denied on 28 February 2018.5[5] On 15 August 2018, I struck out the defendant's counterclaim which, due toFogarty J's judgment being upheld, technically remained afoot:6[8] I agree that the application for strike out must be granted. Thecounterclaim could only be brought if Mercedes Benz had been unsuccessful.That is because the counterclaim is in the tort of conversion with exemplarydamages following in the claim. Of course, Mercedes-Benz has been foundto have acted correctly in repossessing and selling the motor vehicles inquestion. On this basis, I strike out the counterclaim.[6] I also directed the parties to file memoranda as to costs.[7] The defendant did not file a notice of opposition to the strike-out applicationand made no appearance.1 Mercedes-Benz Financial Services New Zealand Ltd v Conway [2016] NZHC 1896.2 At [74]. The defendant had been given leave to file a counterclaim by Heath J on 13 July 2016,which was to be heard separately due to the late hour at which it was brought: Mercedes-BenzFinancial Services Ltd v Conway [2016] NZHC 1587.3 At [75].4 Conway v Mercedes-Benz Financial Services New Zealand Ltd [2017] NZCA 463, (2017) 10NZBLC 99-730.5 Conway v Mercedes-Benz Financial Services New Zealand Ltd [2018] NZSC 16.6 Mercedes-Benz Financial Services New Zealand Ltd v Conway HC Auckland CIV-2014-404-1076, 15 August 2018.Costs[8] The plaintiff filed its memorandum on 29 August 2018. The defendant was tofile his reply by 12 September 2018. No memorandum has been filed by the defendantand nothing has been heard from his legal representatives. I directed the Case Officerto attempt to establish contact with the defendant in order to establish if and when theCourt might expect his memorandum. Several efforts to contact the defendant weremade. None was successful.[9] Costs are at the discretion of the Court.7 I will determine the allocation of costsin this case without the benefit of a memorandum from the defendant.[10] The plaintiff's submission is clear. It says that it has a contractual entitlementto costs on a solicitor/client basis. These total $184,120.79.[11] The basis of this entitlement is found within a term in each of the three financeagreements that the defendant entered into with the plaintiff. These three agreementswere the respective subjects of the three causes of action contained within theplaintiff's statement of claim.[12] Clause 6.3 of each contract stated:8You shall pay to the Lender all costs and expenses, including all legal costsand expenses incurred on a solicitor/own client basis, and all disbursements(including any duties or taxes), sustained or incurred by the Lender in relationto the preparation, negotiation of, and entry into this Contract, each waiver ofor consent in or, and each amendment to this Contract, the registration anddischarge of any security in relation to this Contract and the exercise,protection or enforcement, by the Lender of its rights under this Contract or insuing for or recovering any amounts owing by you under this Contract.[13] Clause 6.3 is clear. It allocates to the defendant all costs incurred by theplaintiff, on a solicitor/client basis, in respect of the enforcement by the plaintiff of itsrights under each of the three contracts. This is what the plaintiff now seeks.[14] There is nothing to indicate the costs claimed are unreasonable.7 High Court Rules 2016, r 14.1.8 The general terms of each of the three contracts, including cl 6.3, were contained in a separatebrochure and incorporated into each of the three contracts by reference.Result[15] I award costs to the plaintiff on a solicitor/client basis as set out in the scheduleattached to its memorandum.________________________________Brewer J