SAMOAN ASSEMBLIES OF GOD IN NZ & ANOR V ASSEMBLIES OF GOD IN NZ INC & ORS HC AK CIV 2005-404-005398

SAMOAN ASSEMBLIES OF GOD IN NZ & ANOR V ASSEMBLIES OF GOD IN NZ INC & ORS HC AK CIV 2005-404-005398 16 April 2008IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2005-404-005398BETWEEN SAMOAN ASSEMBLIES OF GOD IN NEW ZEALAND & ANOR Plaintiffs AND ASSEMBLIES OF GOD IN NEW ZEALAND INCORPORATED & OTHERS DefendantsCIV 2005-404-007102AND BETWEEN SAMOAN ASSEMBLIES OF GOD IN NEW ZEALAND TRUST BOARD INCORPPORATED Plaintiff AND ASSEMBLIES OF GOD IN NEW ZEALAND INCORPORATED Defendant contd /2 Hearing: On the papers. Appearances: H Keyte QC and Q Woodroffe for "Samoan Assemblies of God in New Zealand" R Pidgeon and R Coltman for "Assemblies of God in New Zealand" Judgment: 16 April 2008 at 2:30PMJUDGMENT (NO. 1) OF ANDREWS J [Application as to costs]This judgment was delivered by me on 16 April 2008 at 2:30pmpursuant to r 540(4) of the High Court Rules. .. Registrar/Deputy RegistrarSolicitors: Woodroffe Law Partnership, PO Box 6505, Wellesley Street, Auckland Fortune Manning, PO Box 4193, Auckland Counsel: H C Keyte QC, PO Box 125187, St Heliers, Auckland- 2 -CIV 2005-404-007104AND BETWEEN SAMOAN ASSEMBLIES OF GOD IN NEW ZEALAND TRUST BOARD INCORPORATED Plaintiff AND ASSEMBLIES OF GOD IN NEW ZEALAND INCORPORATED DefendantCIV 2007-404-001812AND BETWEEN ARANUI SAMOAN ASSEMBLY OF GOD & OTHERS Plaintiffs AND ASSEMBLIES OF GOD IN NEW ZEALAND INCORPORATED & OTHERS DefendantsCIV 2007-404-002795AND BETWEEN AVONDALE SAMOAN ASSEMBLY OF GOD & OTHERS Plaintiffs AND ASSEMBLIES OF GOD IN NEW ZEALAND INCORPORATED & OTHERS Defendants[1] Each of the parties in these proceedings (that is, the Samoan Assemblies of God in New Zealand (SAOGNZ) and parties associated with SAOGNZ, and Assemblies of God in New Zealand Inc (AOGNZ) and parties associated with AOGNZ), has filed applications in relation to costs: [2] On 3 December 2007 AOGNZ sought an "unless" order against SAOGNZ in relation to costs awarded against SAOGNZ on 26 September 2005. AOGNZ also sought an order for costs of $6,080 against SAOGNZ for "wasted costs" on abandoned causes of action. [3] On 31 January 2008 SAOGNZ sought an order for costs against AOGNZ in the sum of $3,960 in relation to its application for an injunction following the attempt by members of AOGNZ to occupy the Pule Pule Centre. It also referred to "wasted costs" in respect of AOGNZ's pleadings. [4] On 27 February 2008 AOGNZ responded to the application by SAOGNZ by applying for an order that there be a set-off of costs orders against the respective parties, with the effect of a net order in the sum of $6,635 against SAOGNZ. AOGNZ further sought an order that SAOGNZ's proceedings be stayed until such time as those costs were paid. [5] On 3 March 2008 SAOGNZ filed a memorandum in opposition to that filed by AOGNZ.Costs on the applications for injunctionsCosts against SAOGNZ[6] On 26 September 2005 Venning J awarded AOGNZ costs arising from the interlocutory application for injunction filed at the outset of this proceeding. Costs were later fixed in the sum of $3,915.[7] On or about 15 December 2005 SAOGNZ tendered payment of the costs ordered, by a cheque dated 8 December 2005. On that same day, 15 December 2005, the AOGNZ sought an order freezing the account on which the cheque was drawn. Harrison J made an order freezing that account together with other bank accounts belonging to SAOGNZ. [8] It is clear that the costs ordered have not been paid by SAOGNZ, but that is not by way of any wilful default on its part. In the circumstances, it is not appropriate to make the "unless" order sought by AOGNZ.Costs in relation to SAOGNZ's application for injunction in relation to the Pule Pule Centre[9] On 30 November 2007 SAOGNZ filed an application for an interim injunction seeking to restrain AOGNZ from doing certain acts in respect of property and bank accounts. In particular, the application sought to restrain AOGNZ from attempting to take possession of the Pule Pule Centre. [10] The application was heard on 3 December 2007, during which SAOGNZ consented to an adjournment on the basis that undertakings were given by AOGNZ on certain terms. At a further hearing on 13 December 2007 an agreement was reached between the parties as to use of the Pule Pule Centre. It was signalled that SAOGNZ would seek costs. SAOGNZ seeks costs in the sum of $3,960, together with a disbursement in the sum of $600, being the filing fee.Discussion[11] Rule 48(e) of the High Court Rules provides, with respect to costs in interlocutory applications, that unless there are special reasons to the contrary, costs on an opposed interlocutory application must be fixed when the application is determined, and become payable when they are fixed. [12] As noted earlier, costs have been fixed in relation to the first injunction application – the order of Venning J is referred to.[13] With respect to the application for injunction filed by SAOGNZ in November 2007, I am satisfied that it is appropriate for an order for costs to be made. Counsel for AOGNZ submitted that the order should be $600 less than that sought, on the basis that second counsel was unwarranted. [14] In this instance, second counsel was warranted, so costs are ordered in favour of SAOGNZ in the sum of $3,960, together with a disbursement of $600. [15] Pursuant to r 53 of the High Court Rules there is to be a set off of the two orders for costs. The consequence is that the sum of $545.00 is payable by AOGNZ to SAOGNZ."Wasted costs" application[16] Each of the parties' seeks orders, essentially on the basis of "wasted costs". AOGNZ seeks "wasted costs" on the basis of causes of action abandoned by SAOGNZ between its statement of claim, its first amended statement of claim and its second amended statement of claim, in the sum of $6,080. [17] For its part, SAOGNZ seeks "wasted costs" in respect of caveats lodged by AOGNZ and allegations in the statement of defence filed by AOGNZ with reference to a property in Wanganui.Discussion[18] In both these cases, it is not appropriate to make any order as to costs, in favour of either party, until these proceedings are finally determined. Accordingly, no order is made in respect of each party's claim as to "wasted costs".Result[19] The application by AOGNZ for an "unless" order in respect of the costs order made by Venning J on 26 September 2005 is dismissed.[20] The application by SAOGNZ for costs in respect of its application for injunction filed on 30 November 2007 is granted. Costs are payable by AOGNZ in the sum of $3,960, together with a disbursement of $600. [21] As a result of set off pursuant to r 53, the sum of $545 is payable by AOGNZ to SAOGNZ. [22] Neither party is, at this stage, entitled to an order for costs in respect of "wasted costs".__________________________Andrews J