HEAVEN V WEBSTER MALCOLM & KILPATRICK HC AK CIV 2004-404-002826

HEAVEN V WEBSTER MALCOLM & KILPATRICK HC AK CIV 2004-404-002826

Because the plaintiffs' claim was struck out as having been commenced out of time, the defendants were the successful party under r47(a) and are entitled to costs for the proceeding and related interlocutory steps absent special circumstances; the plaintiffs' limited success on the assignment issue did not warrant apportionment or reduction of costs in this case.

Citation
openlaw-9d1354e1_5554_49a0_bdb7_496d6c300f03.pdf
Parties
Plaintiffs: John Charles Heaven and Mary Louise Heaven; Defendants: Webster Malcolm & Kilpatrick
Court
High Court
Jurisdiction
New Zealand
Judgment Date
22 December 2005
Procedural Posture
Civil Review of Judgments / Costs Determination (judgment on Costs)
Outcome
Plaintiffs ordered to pay defendants' costs and disbursements.
Legal Topics
Strike Out, Limitation Act, Assignment of Cause of Action, High Court Rules R47(a), Interlocutory Applications
Civil Procedure Costs Limitation Law Bankruptcy Law Strike Out Limitation Act Assignment of Cause of Action High Court Rules R47(a) +1 more

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Parties

John Charles Heaven and Mary Louise Heaven

Plaintiffs

Webster Malcolm & Kilpatrick

Defendants

Procedural Posture

Civil Review of Judgments / Costs Determination (judgment on Costs)

Legal Issues

  1. 1 Whether the plaintiffs' claim was statute-barred under the Limitation Act
  2. 2 Whether the cause of action vested in the Official Assignee and had been reassigned to the plaintiffs
  3. 3 Whether costs should be apportioned because the plaintiffs had limited success on the assignment issue

Ratio Decidendi

Because the plaintiffs' claim was struck out as having been commenced out of time, the defendants were the successful party under r47(a) and are entitled to costs for the proceeding and related interlocutory steps absent special circumstances; the plaintiffs' limited success on the assignment issue did not warrant apportionment or reduction of costs in this case.

Court Disposition

Plaintiffs ordered to pay defendants' costs and disbursements.

Orders

  • Plaintiffs to pay defendants' costs in the sum of $12,760
  • Plaintiffs to pay defendants' disbursements in the sum of $690