IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2009-404-5197

BETWEEN	DOMINION FINANCE GROUP LIMITED (IN RECEIVERSHIP AND IN LIQUDATION)
Plaintiff

AND	DYSON SMYTHE & GLADWELL Defendant

Hearing:	19 May 2010

Appearances: R J T Robertson for plaintiff (on papers)
G D Wadsworth for defendant (on papers) Judgment:	14 September 2010 at 4 p.m.

JUDGMENT OF ASSOCIATE JUDGE DOOGUE [on Costs]

This judgment was delivered by me on
14.09.10 at  4 pm, pursuant to
Rule 11.5  of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:
Stace Hammond, P O Box 19-101, Hamilton – by email: rosemaryr@shg.co.nz
Kennedys, P O Box 3158, Auckland – by email: g.wadsworth@kennedys-law.co.nz

DOMINION FINANCE GROUP LIMITED (IN RECEIVERSHIP AND IN LIQUDATION) V DYSON SMYTHE & GLADWELL HC AK CIV-2009-404-5197  14 September 2010

[1]       I thank counsel for their memoranda on the matter of costs.

[2]       I do not agree that this is a case where indemnity costs ought to be awarded. I do not consider that there is any presumption that a claim based upon a solicitor’s undertaking will normally attract an award of costs on an increased or indemnity basis.  As Mr Wadsworth noted, r 14.6 establishes that a breach of undertaking is one of the cases where the Court may order indemnity costs but it does not have to. One of the reasons why such cases potentially attract indemnity costs is that they involve dishonourable conduct.   But in this case there is no such element present. There was a bona fide difference of opinion as to the scope of the undertaking that was given.

[3]       I therefore conclude that costs should be on a 2B basis.

[4]       I understand that no order is required authorising the plaintiff’s solicitor to release the funds held in the solicitor’s trust account on account of security for costs
because that matter is now the subject of agreement between the parties.

J.P. Doogue
Associate Judge