Westpac New Zealand Limited (1763882) v Duggal [2012] NZHC 2998 (13 November 2012)

Last Updated: 21 November 2012

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2012-419-249 [2012] NZHC 2998

UNDER Part 12 of the High Court Rules

IN THE MATTER OF an application for summary judgment

BETWEEN WESTPAC NEW ZEALAND LIMITED (1763882)

Plaintiff

AND PANKAJ DUGGAL AND KAMLESH DUGGAL AS TRUSTEES OF THE AMAR SANT FAMILY TRUST Defendants

(On the papers)

Counsel: BJ Upton for plaintiff

Appearance: P Duggal, first-named defendant in person

Judgment: 13 November 2012

JUDGMENT OF ASSOCIATE JUDGE FAIRE [on costs]

Solicitors: Simpson Grierson, Private Bag, 92 518, Auckland

_{And To: P and K Duggal, 30B Glenview Terrace, Hamilton}

WESTPAC NEW ZEALAND LIMITED (1763882) VP DUGGAL AND K DUGGAL AS TRUSTEES OF THE AMAR SANT FAMILY TRUST HC HAM CIV-2012-419-249 [13 November 2012]

[1] On 20 August 2012 I struck out the plaintiff’s proceeding. The proceeding had sought judgment against the two trustees of the Amar Sant Family Trust. The plaintiff accepted that the defendants in this proceeding were independent trustees and that it was not appropriate to proceed and therefore filed a notice of discontinuance. That led to my order striking out the proceeding.

[2] The defendants and counsel for the plaintiff were alerted by me to the long- standing position adopted by the Court and which has its foundation in the judgment re Collier (a bankrupt).[1] That case held that there is an established rule in New Zealand that a lay litigant is not entitled (except in exceptional cases) to recover costs, although the Court has a discretion to allow disbursements.

[3] There are no exceptional circumstances in this case. Mr Duggal, on behalf of the other defendant, argued, however, that the foundation for the rule set by re Collier was questionable and that the time had been reached where the general scale of allowed costs contained in Part 14 of the High Court Rules should be allowed. In short, he submitted that if a party was successful that party should enjoy an order for costs irrespective of whether the party employs a person on the roll of barristers and solicitors to act for that successful party.

[4] Mr Duggal has referred to the refinements to the High Court Rules that have been developed since the leading authorities pronounced on this subject.

[5] The leading authority is the Court of Appeal judgment in re Collier (a bankrupt). I do not regard any of the changes as indicating a change in the general rule which was adopted by the Court of Appeal. I am bound by decisions of the Court of Appeal and do not consider I have any justification for the reasons that are set out in Mr Duggal’s paper for not following it.

[6] Accordingly, I conclude that it is not appropriate that any cost order be made in favour of the defendants in this case. The defendants are entitled to their

reasonable disbursements. That is acknowledged responsibly by the plaintiff’s

counsel in the memorandum that has been filed.

[7] Accordingly, I order that the defendants are entitled to their reasonable disbursements as submitted and approved by the Registrar.

JA Faire
Associate Judge

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[1] re Collier (a bankrupt) [1996] 2 NZLR 438 (CA), (1996) 10 PRNZ 145.