SAMANTHA O'BRIEN V THE NEW ZEALAND HOME LOAN COMPANY LIMITED HC AK CIV 2010-404-008323
The application for transfer and security for costs was resolved by the plaintiff's conditional agreement and trustees' undertaking; the circumstances did not justify increased costs above the 2B scale but the defendant was entitled to additional costs for preparing two costs memoranda (assessed as half a day on a...
Source-derived case information.
- Citation
- openlaw-19d2201b_f46d_46f7_906e_a305d1a46efc.pdf
- Parties
- Plaintiff: Samantha O'Brien; Defendant: The New Zealand Home Loan Company Limited
- Court
- High Court
- Jurisdiction
- New Zealand
- Judgment Date
- 21 July 2011
- Procedural Posture
- Civil Proceeding / Costs Hearing and Interlocutory Applications (transfer and Security for Costs)
- Outcome
- Proceeding to be transferred to Hamilton conditional on unsuccessful judicial settlement conference; trustees' undertaking accepted as security for costs; costs awarded on 2B scale with limited additional allowance for memoranda; no uplift ordered.
- Legal Topics
- Costs Awards, Increased Costs (uplift), Transfer of Proceedings Between Registries, Security for Costs by Undertaking, Costs for Filing Memoranda
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samantha O'Brien
Plaintiff
The New Zealand Home Loan Company Limited
Defendant
Procedural Posture
Civil Proceeding / Costs Hearing and Interlocutory Applications (transfer and Security for Costs)
Legal Issues
- 1 Whether the proceeding should be transferred to the Hamilton High Court
- 2 Whether security for costs was appropriate
- 3 Whether increased costs (uplift) under HCR 14.6(3)(b)(ii) should be ordered
Ratio Decidendi
The application for transfer and security for costs was resolved by the plaintiff's conditional agreement and trustees' undertaking; the circumstances did not justify increased costs above the 2B scale but the defendant was entitled to additional costs for preparing two costs memoranda (assessed as half a day on a 2B basis); accordingly costs were fixed at 2B plus disbursements totalling $2,801.13.
Court Disposition
Proceeding to be transferred to Hamilton conditional on unsuccessful judicial settlement conference; trustees' undertaking accepted as security for costs; costs awarded on 2B scale with limited additional allowance for memoranda; no uplift ordered.
Orders
- Proceeding to be transferred to the Hamilton High Court if the judicial settlement conference on 8 August 2011 is unsuccessful.
- Trustees of the plaintiff's family trust to undertake that trust assets will be made available to meet any costs award against the plaintiff.
Full Case Text
Judgment text and source record
1 paragraphs
SAMANTHA O'BRIEN V THE NEW ZEALAND HOME LOAN COMPANY LIMITED HC AK CIV 2010- 404-008323 21 July 2011IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV 2010-404-008323BETWEEN SAMANTHA O'BRIENPlaintiffAND THE NEW ZEALAND HOME LOANCOMPANY LIMITEDDefendantHearing: 21 July 2011Appearances: W A McCartney for the PlaintiffM D Branch for the DefendantJudgment: 21 July 2011ORAL JUDGMENT AS TO COSTS AWARD OFASSOCIATE JUDGE CHRISTIANSENSolicitors/Counsel:W McCartney, Barrister, Auckland – bill@mccartney.co.nzM Branch, Harkness Henry, Hamilton – murray.branch@harkness.co.nz / keiran.lomas@harkness.co.nz[1] The defendant's application for orders to transfer this proceeding to the Hamilton High Court and for security for costs were set down for hearing today.[2] Those issues were resolved by:(a) The plaintiff agreeing that the proceeding is transferred to Hamilton ifthe judicial settlement conference scheduled for 8 August 2011 isunsuccessful.(b) The trustees of the plaintiff's family trust undertaking that the assetsof the family trust will be made available to meet any costs awardagainst the plaintiff.[3] The parties have agreed to file memoranda as to costs. The plaintiff hasrefused to settle costs upon a 2B basis.[4] I have now read counsels' memoranda. That for the defendant seeks 2B costsand for costs as well for the memoranda filed upon its claim for costs. In additionthe defendant asserts that this is a suitable case for increased costs pursuant toHCR 14.6(3)(b)(ii) which provides that the Court may order increased costs if aparty has contributed unnecessarily to the time or expense of the proceeding or onstep in it by taking or pursuing an unnecessary step or an argument that lacks merit.[5] The plaintiff's position is that a costs award should be limited to a 2B basiswith no extra provision for the supply of costs memoranda, or in respect of any upliftclaim.Decision[6] The proceedings were filed in the wrong Registry. The application for security was appropriate.[7] I do not consider the circumstances appropriate to warrant an increase in costs above 2B scale. There has been delay caused but it is insufficient to require consideration for an uplift.[8] Extra costs were involved in respect of the preparing of costs memoranda. This was required because the parties could not settle the payment of costs on a 2B basis. Some consideration ought to be given to cover the costs of supplying those memoranda. There were two such from the defendant and I consider a half day allowable on a 2B basis.[9] Accordingly 2B costs are fixed in the sum of $2,168.00. That sum together with disbursements of $633.13 amounts to a total due from the plaintiff in the sum of $2,801.13.Associate Judge Christiansen