SAFER CORPORATION LIMITED V THE NEW ZEALAND AUTOMOBILE ASSOCIATION INCORPORATED HC AK CIV 2007-404-003217

SAFER CORPORATION LIMITED V THE NEW ZEALAND AUTOMOBILE ASSOCIATION INCORPORATED HC AK CIV 2007-404-003217 17 February 2009IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2007-404-003217BETWEEN SAFER CORPORATION LIMITED Plaintiff AND THE NEW ZEALAND AUTOMOBILE ASSOCIATION INCORPORATED Defendant Hearing: by memorandum Counsel: J E McLennan for defendant Judgment: 17 February 2009 at 3:00pmCOSTS JUDGMENT OF ASSOCIATE JUDGE ABBOTTThis judgment was delivered by me on 17 February 2009 at 3:00pm, pursuant to Rule 11.5 of the High Court Rules. Registrar/Deputy RegistrarSolicitors: Cook Morris Quinn, PO Box 84203, Westgate, Auckland 0657 for plaintiff Holmden Horrocks, PO Box 1108, North Shore, Auckland 0740 for defendant[1] The defendant has applied for costs following discontinuance of this proceeding by the plaintiff. [2] The plaintiff filed its notice of discontinuance on 8 October 2008. It followed, and was the first step taken after, a judgment of Associate Judge Hole given on 30 July 2008 in which the plaintiff was ordered to pay $30,000 into Court as security for the defendant's costs. The payment was to be made by 10 September 2008. The proceeding was to be stayed if payment was not made by that date. The plaintiff did not make the payment into Court. [3] Counsel for the defendant filed a memorandum on 22 December 2008 seeking costs on a scale 2B basis for all steps in the proceeding excluding those associated with the application for security for costs (the defendant had been awarded costs on that application on a 2B basis). In his memorandum counsel for the defendant proposed that the plaintiff have until 29 January 2009 to file any memorandum in reply, and invited the Court to make an order as sought if the plaintiff failed to file a memorandum by that date. [4] Subject to the Court's overriding discretion as to costs r 15.23 of the High Court Rules 2008 provides that a plaintiff who discontinues without an agreement as to costs must pay the costs of the defendant up to time of discontinuance:15.23 CostsUnless the defendant otherwise agrees or the court otherwise orders, a plaintiff who discontinues a proceeding against a defendant must pay costs to the defendant of and incidental to the proceeding up to and including the discontinuance.[5] The plaintiff has had opportunity to make submissions on the costs claimed. It has chosen not to do so in face of the express request in the memorandum for the defendant that the Court fix costs if the plaintiff has not filed an opposing memorandum by 29 January 2009. [6] I infer that the plaintiff accepts both that the defendant is entitled to costs, and that the costs claimed are appropriate and reasonable. Whether or not that is theposition of the plaintiff, it is my view. I see no reason to depart from the standard course prescribed by r 15.23. [7] I have reviewed the various items for which costs are claimed. I am satisfied from the Court file that the defendant is entitled to costs in respect of each of the items. In respect of the claim for preparation of interrogatories, although the notice is not on the Court file I note the reference in a memorandum of counsel for the defendant dated 1 April 2008 to a request for further particulars and a notice to answer interrogatories having been answered by way of correspondence. [8] I make an order that the plaintiff pay costs and disbursements to the defendant in the total sum of $14,170.00 as set out in the schedule attached to the defendant's memorandum of 22 December 2008. ____________________Associate Judge Abbott