WAIPURU INVESTMENTS LTD & ORS v BISHOP & ORS [2017] NZHC 924

WAIPURU INVESTMENTS LTD & ORS v BISHOP & ORS [2017] NZHC 924

The Court refused to immediately award the full claimed indemnity costs of $117,275+GST. Applying the Black v ASB Bank Ltd criteria the Court found the claimed sum excessive given the straightforward, unopposed nature of the application and required further evidence from plaintiffs' solicitors and counsel to demonstrate that each task was contemplated by the indemnity, reasonably necessary, and charged at a reasonable rate; the costs claim was adjourned pending that material with the possibility of taxation, Law Society referral, or appointment of counsel to assist the Court.

Citation
[2017] NZHC 924
Parties
First Plaintiff: WAIPURU INVESTMENTS LIMITED; Second Plaintiff: JOHN ALEXANDER DUNCAN COOPER; Second Plaintiff: W H WILSON LIMITED; First Defendant: RAYMOND VINCENT BISHOP; First Defendant: LISA GRACE BISHOP; Second Defendant: WILLIAM MARK FEARON; Third Defendant: ALLIED PETROLEUM (NI) LIMITED; Fourth Defendant: TIL FREIGHTING LIMITED; Fifth Defendant: FARMLANDS COOPERATIVE SOCIETY LIMITED
Court
High Court
Jurisdiction
New Zealand
Judgment Date
9 May 2017
Procedural Posture
Application for Summary Judgment Under Property Law Act 2007 S200 / Interim Judgment on Costs Following Summary Judgment Application
Outcome
Interim judgment: claim for indemnity costs adjourned and not awarded pending further supporting material from plaintiffs' solicitors and counsel
Legal Topics
Summary Judgment, Indemnity Costs, Mortgage Covenants, Term Loan Agreement, High Court Rules R14.6
Property Law Civil Procedure Contract Costs Summary Judgment Indemnity Costs Mortgage Covenants Term Loan Agreement +1 more

Case Brief

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Parties

WAIPURU INVESTMENTS LIMITED

First Plaintiff

JOHN ALEXANDER DUNCAN COOPER

Second Plaintiff

W H WILSON LIMITED

Second Plaintiff

RAYMOND VINCENT BISHOP

First Defendant

LISA GRACE BISHOP

First Defendant

WILLIAM MARK FEARON

Second Defendant

ALLIED PETROLEUM (NI) LIMITED

Third Defendant

TIL FREIGHTING LIMITED

Fourth Defendant

FARMLANDS COOPERATIVE SOCIETY LIMITED

Fifth Defendant

Procedural Posture

Application for Summary Judgment Under Property Law Act 2007 S200 / Interim Judgment on Costs Following Summary Judgment Application

Legal Issues

  1. 1 Whether contractual indemnity clauses in the mortgage and term loan agreement entitle the plaintiffs to solicitor/client (indemnity) costs
  2. 2 Whether the quantum of costs claimed was reasonably incurred and reasonable in amount under Black v ASB Bank Ltd criteria
  3. 3 What tasks attract the contractual indemnity and whether steps taken were reasonably necessary

Ratio Decidendi

The Court refused to immediately award the full claimed indemnity costs of $117,275+GST. Applying the Black v ASB Bank Ltd criteria the Court found the claimed sum excessive given the straightforward, unopposed nature of the application and required further evidence from plaintiffs' solicitors and counsel to demonstrate that each task was contemplated by the indemnity, reasonably necessary, and charged at a reasonable rate; the costs claim was adjourned pending that material with the possibility of taxation, Law Society referral, or appointment of counsel to assist the Court.

Court Disposition

Interim judgment: claim for indemnity costs adjourned and not awarded pending further supporting material from plaintiffs' solicitors and counsel

Orders

  • Plaintiffs' solicitors and counsel are to file further material addressing whether every task undertaken was contemplated by the indemnity clauses, whether the steps were reasonably necessary, and whether the rates charged were reasonable
  • The further material must specifically address the criteria in Black v ASB Bank Ltd