PERPETUAL TRUST LIMITED v BOLTON [2023] NZHC 1364
Because the respondent refused to engage and thereby caused avoidable expense, the applicant was entitled to indemnity (solicitor/client) costs; the Court reviewed invoices, found attendances reasonable, proceeded on GST‑exclusive basis and awarded indemnity costs of $30,240 plus disbursements of $2,038.80.
Source-derived case information.
- Citation
- [2023] NZHC 1364
- Parties
- Applicant: PERPETUAL TRUST LIMITED as administrator and trustee of the Estate of REGINALD WILLIAM BOLTON; Respondent: JOHN GRAHAM KENNETH BOLTON
- Court
- High Court
- Jurisdiction
- New Zealand
- Judgment Date
- 1 June 2023
- Procedural Posture
- Declaratory Judgment Application to Discharge a Mortgage / Costs Judgment After Entry of Judgment Following Formal Proof Hearing
- Outcome
- Applicant awarded indemnity costs
- Legal Topics
- Mortgage Discharge, Declaratory Relief, Indemnity Costs, GST Input Credit
Source-derived case record
Summary, issues, holding and outcome
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Parties
PERPETUAL TRUST LIMITED as administrator and trustee of the Estate of REGINALD WILLIAM BOLTON
Applicant
JOHN GRAHAM KENNETH BOLTON
Respondent
Procedural Posture
Declaratory Judgment Application to Discharge a Mortgage / Costs Judgment After Entry of Judgment Following Formal Proof Hearing
Legal Issues
- 1 Whether the applicant was entitled to indemnity (solicitor/client) costs
- 2 Whether the legal fees invoiced related properly to the proceeding and were reasonable
- 3 Whether GST input credit entitlement affects calculation of costs
Ratio Decidendi
Because the respondent refused to engage and thereby caused avoidable expense, the applicant was entitled to indemnity (solicitor/client) costs; the Court reviewed invoices, found attendances reasonable, proceeded on GST‑exclusive basis and awarded indemnity costs of $30,240 plus disbursements of $2,038.80.
Court Disposition
Applicant awarded indemnity costs
Orders
- Indemnity costs awarded in the sum of $30,240 (GST‑exclusive) plus disbursements of $2,038.80.
Full Case Text
Judgment text and source record
1 paragraphs
PERPETUAL TRUST LIMITED v BOLTON [2023] NZHC 1364 [1 June 2023]IN THE HIGH COURT OF NEW ZEALANDTAURANGA REGISTRYI TE KŌTI MATUA O AOTEAROATAURANGA MOANA ROHECIV-2022-470-000158[2023] NZHC 1364UNDER the Declaratory Judgments Act 1908IN THE MATTER of an application for an order discharging amortgage by declaration that the mortgagewas unjustifiably executedBETWEEN PERPETUAL TRUST LIMITED asadministrator and trustee of the Estate ofREGINALD WILLIAM BOLTONApplicantAND JOHN GRAHAM KENNETH BOLTONRespondentHearing: On the papersAppearances: M Ward-Johnson for the ApplicantNo appearance for RespondentJudgment: 1 June 2023JUDGMENT OF WALKER J[COSTS]This judgment was delivered by me on 1 June 2023 at 11 amPursuant to Rule 11.5 High Court RulesRegistrar/Deputy Registrar[1] Following entry of judgment, the applicant seeks indemnity costs. A judgmentwas entered following a formal proof hearing as the respondent would not engage withthe applicant. His conduct means that the applicant incurred expenses which oughtnever to have had to be incurred.[2] I am satisfied that the applicant is entitled to reasonable solicitor/client costs.[3] Counsel has filed a memorandum with supporting invoices. I have reviewedthose invoices. As far as I can tell, the attendances recorded relate properly to theapplication before the Court and are reasonable.[4] I proceed on the basis that the applicant is GST registered and therefore entitledto a GST input credit in respect of GST payable for legal services.[5] On that basis, I award indemnity costs in the sum of $30,240 being the GSTexclusive sum invoiced plus disbursements of $2,038.80.............................................................Walker J