Johnson v Watling [2012] NZHC 2022 (10 August 2012)

Last Updated: 4 September 2012

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2012-409-001425 [2012] NZHC 2022

BETWEEN GINA CLARE JOHNSON Plaintiff

AND PETER CHARLES WATLING Defendant

Hearing: 10 August 2012 (by telephone) Appearances: J M Kirkland for Plaintiff

S N van Bohemen for Defendant

Judgment: 10 August 2012

_{JUDGMENT OF FOGARTY J}

Solicitors:

Saunders & Co., PO Box 18, Christchurch

Arthur Sandston, PO Box 29490, Christchurch 8540

Copy to:

S N Bohemen, PO Box 6230, Upper Riccarton, Christchurch 8442

JOHNSON V WATLING HC CHCH CIV-2012-409-001425 [10 August 2012]

[1] The parties have settled this litigation, but for costs. There is an order in these terms:

(a) The freezing order will continue until the proceedings in this court are discontinued.

(b) It is the intent that they be discontinued upon Mr Watling and Landley Trustees Ltd giving an irrevocable instruction to the ASB and BNZ in the terms agreed between counsel.

(c) Leave to either party to apply.

[2] The parties have not been able to agree on costs. I have heard counsel.

[3] I am satisfied that in the light of the information available to Mr Kirkland on Friday 13 July 2012, he was justified in taking the steps of making an ex parte application for a freezing order. The salient fact was that his client had suddenly been denied internet access to peruse the relevant bank accounts and had no prior explanation as to this.

[4] I accept that it was the intent that she or her solicitors were going to be advised promptly as to what had happened, but in fact it was the alacrity with which Mr Kirkland moved that pre-empted that.

[5] Application for freezing orders are often made with alacrity and have to be made on judgments based on the information available at the time. Often those judgments prove that the party applying had fears which were in fact unfounded, but that is not the basis of judging whether or not an order for costs should apply.

[6] Mr Kirkland is seeking an order only for his attendances preparing the papers for the freezing order and obtaining them, together with the filing fees. He is not seeking further costs in subsequent attendances.

[7] Mr van Bohemen contends that those initial costs of Mr Kirkland should be put in context with the costs that he was put to when his response from the outset was to resolve the case on the instructions of his client without further Court proceedings. He contends that the subsequent application of Mr Kirkland to extend the freezing order beyond today, put his (Mr van Bohemen’s client) to the unnecessary expense of Mr van Bohemen having to prepare a notice of opposition and memorandum to the Court.

[8] I have not been satisfied that those attendances can be realistically separated from the negotiations which were ongoing to settle the matter. In the nature of those obligations the preparation of the memorandum and the notice of opposition drew upon the attendances of those obligations.

[9] It is my judgment that the justice of the situation is that there be an order for costs on a 2B basis for the attendances, applying for the freezing order and obtaining it, together with the filing fees for that application. The hearing fee for today will be at the expense of the plaintiff.