MONASTERIO AND MOYA V BUJAK AND ORS HC CHCH CIV 2008-409-001901 [2009] NZHC 469 (1 May 2009)

IN THE HIGH COURT OF NEW ZEALAND
CHRISTCHURCH REGISTRY
                                                                CIV 2008-409-001901



               BETWEEN                     MARCOS ERIK MONASTERIO AND
                                           MARIA JOSE MARCOS
MOYA
                                           Plaintiffs

               AND                         SLAWOMIR RYSZARD BUJAK
  
                                        First Defendant

               AND                         DANUTA ALEKSANDRA
          
                                ZALWOWSKA-SPISAK
                                           Second Defendant

               AND
                        HUGH SHEARER
                                           Third Defendant


Hearing:       (On papers)

Counsel:
      E Orlov for Plaintiffs
               G E Slevin for First Defendant

Judgment:      1 May 2009


                      COSTS
JUDGMENT OF FOGARTY J



[1]    This is a common law action for damages in respect of a home suffering
defects consequent upon water
damage. On 3 March last I heard two applications by
the first defendant, one to set aside the order for substituted service, the
other to set
aside the set of Mareva orders. I also had an informal application by the plaintiffs'
counsel for an affidavit of disclosure
of financial information to be appended to the
Mareva orders by way of bill of disclosure. I did not consider that application.


[2]    The application to set aside the substituted order succeeded, subject to leave
to reapply for a new substituted service order
upon a demonstration that the plaintiffs



MONASTERIO AND MOYA V BUJAK AND ORS HC CHCH CIV 2008-409-001901 1 May 2009
have made
a reasonable effort to see whether the Ministry does have the second
defendant's registered address.


[3]     The application to
set aside the Mareva injunction orders was not completely
successful. However, I did agree that in their place there ought to be
what I called "a
light-handed freezing set of orders".


[4]     As to costs, I held:

        [35]     I reserve the question of
costs. I would indicate that I am of the
        view that it is premature at this stage to decide whether or not either of the

       parties should be entitled to the costs of today's proceedings. To a degree, in
        my mind, each of the parties have
been partially successful and I am
        disposed to let costs lie where they fall. However, for the sake of finality I
      
 will reserve costs in case counsel are of the opinion that they can persuade
        me otherwise.

[5]     The first defendant
seeks costs. Firstly, Mr Orlov applied for increased and
indemnity costs. Both applications are hopeless as they rely on arguing
that there is
no merit in the main claim which has yet to go to trial. He did not lodge a claim for
ordinary costs, but I would have
granted them if I thought appropriate.


[6]     The plaintiffs responded by seeking costs themselves, firstly on the grounds
of
the first defendant's failure to have the Mareva injunction set aside and secondly
on the grounds of the unnecessary waste of time
by his failure to seek or agree
consent orders. The first ground overstates the claim. The second claim has some
merit but not enough
to offset the successes that the defendants made.


[7]     I find that costs should lie where they fall. There is not order for
costs.




Solicitors:
Wynn Williams & Co, Christchurch, for Plaintiffs
Cousins & Associates, Christchurch, for First Defendant