ABERNETHY V COUGHLAN HC AK CIV-2010-404-000939

ABERNETHY V COUGHLAN HC AK CIV-2010-404-000939

The presumption in High Court Rules r 15.23 was not displaced; applicants who obtained without‑notice freezing orders must pay respondents' costs on discontinuance. The court awarded costs to respondents but reduced claimed amounts by 50% for attendances that overlapped related appeals and by 50% for excessive time claimed, resulting in specific awards of $940, $1,316 and $40.

Citation
openlaw-3d46604a_14a5_4fb2_9375_350d86cec42b.pdf
Parties
Applicant: Vanessa Eileen Abernethy; Applicant: Alan Richard Abernethy; First Respondent: Richard Francis Coughlan; Second Respondent: Trevor James Humphrey; Third Respondent: Richard William Coughlan; Fourth Respondent: John Wyber Petersen; Fifth Respondent: Brian Nelson Reece
Court
High Court
Jurisdiction
New Zealand
Judgment Date
29 June 2011
Procedural Posture
Application for Freezing Orders Under the Property Law Act 1952 / Proceeding Discontinued; Interlocutory Costs Application on Discontinuance
Outcome
Costs awarded to respondents on discontinuance; applicants ordered to reimburse reduced costs and a sealing fee
Legal Topics
Freezing Orders, Discontinuance, Costs on Discontinuance, Interim Injunctions
Property Law Civil Procedure Costs Law Freezing Orders Discontinuance Costs on Discontinuance Interim Injunctions

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Parties

Vanessa Eileen Abernethy

Applicant

Alan Richard Abernethy

Applicant

Richard Francis Coughlan

First Respondent

Trevor James Humphrey

Second Respondent

Richard William Coughlan

Third Respondent

John Wyber Petersen

Fourth Respondent

Brian Nelson Reece

Fifth Respondent

Procedural Posture

Application for Freezing Orders Under the Property Law Act 1952 / Proceeding Discontinued; Interlocutory Costs Application on Discontinuance

Legal Issues

  1. 1 Whether the presumption in r 15.23 that a discontinuing plaintiff pays costs should be displaced
  2. 2 Whether applicants who obtained without notice freezing orders should be liable for respondents' costs
  3. 3 Appropriate reduction of claimed costs where attendances overlap related proceedings

Ratio Decidendi

The presumption in High Court Rules r 15.23 was not displaced; applicants who obtained without‑notice freezing orders must pay respondents' costs on discontinuance. The court awarded costs to respondents but reduced claimed amounts by 50% for attendances that overlapped related appeals and by 50% for excessive time claimed, resulting in specific awards of $940, $1,316 and $40.

Court Disposition

Costs awarded to respondents on discontinuance; applicants ordered to reimburse reduced costs and a sealing fee

Orders

  • Costs for appearances at mentions hearing, filing of memorandum for mentions hearing and sealing of order (one half day at $1,880 per day): $940
  • Costs associated with dealing with the application for freezing orders and in relation to the discontinuance (0.7 day at $1,880 per day): $1,316