ROQUEFORT JAMES LIMITED V NORTHERN TRUSTEE SERVICES (BT) LIMITED HC AK CIV 2010-404-975

ROQUEFORT JAMES LIMITED V NORTHERN TRUSTEE SERVICES (BT) LIMITED HC AK CIV 2010- 404-975 26 May 2010IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2010-404-975IN THE MATTER OF Section 167 of the Personal Property Securities Act 1999 BETWEEN ROQUEFORT JAMES LIMITED Applicant AND NORTHERN TRUSTEE SERVICES (BT) LIMITED Respondent Hearing: 26 May 2010 Counsel: J Foley for Applicant M Colthart for Respondent Judgment: 26 May 2010ORAL JUDGMENT OF MILLER J[1] Before me is an interlocutory application for orders striking out the respondent's notice of opposition, appointing a receiver of a boat, and authorising the receiver to sell the boat and disburse its proceeds. [2] The application is brought on the ground that the respondent has failed to pay the costs of an interlocutory application pursuant to a direction given by Andrews J on 6 May. She directed that the respondent pay costs on a 2B basis together with disbursements as fixed by the Registrar, those costs to be paid within seven days of an appropriate order being sealed. [3] The order was sealed and served on 11 May without consultation between counsel as to the quantum. On the 14 th of May Mr Colthart's instructing solicitor,Mr Hucker, faxed a query whether the 2B costs exceeded the actual costs incurred by the applicant. It seems that fax was not received. [4] However, the costs have now been paid. There is no dispute that the quantum of the order was correctly calculated. The application for orders striking out the respondent's notice of opposition and for other orders, has been withdrawn. [5] The issue before me today is the costs of that application, which again are sought on a 2B basis. As to that it seems to me that costs are properly awarded on a 2B basis for two reasons. First, the proper time to raise the query about the relationship between scale and actual costs was before Andrews J. She has ordered that costs be fixed on a 2B basis and that is an end of the matter. There is no dispute as to the actual calculation. [6] Second, I accept that the application sought other orders which have now been abandoned, but they would not affect the calculation of costs properly payable pursuant to scale. In other words, the application for striking out for non-payment of costs would in itself justify costs on a 2B basis. [7] Costs are fixed accordingly. [8] The costs of $2,440.00 with disbursements is fixed by the Registrar. An order may be sealed accordingly. On service it is to be paid within seven days. Miller JSolicitors:Foley & Hughes, Auckland for Applicant Hucker Associates, Auckland for Respondent