Westpac New Zealand Limited v Yarrow [2018] NZHC 452 (12 April 2018)

Last Updated: 1 May 2018

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KOTI MATUA O AOTEAROA TAMAKI MAKAURAU ROHE

CIV-2015-404-1537 [2018] NZHC 452

BETWEEN	WESTPAC NEW ZEALAND LIMITED Substituted Creditor
AND	PAUL STEVEN YARROW Judgment Debtor

Hearing:	15-16 June 2017
Appearances:	Mr R B Stewart QC and Ms E C Gellert for Substituted Creditor Mr D G Collecutt for Judgment Debtor
Judgment:	12 April 2018

JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE

[On Costs]

This judgment was delivered by me on

12.04.18 at 4.00 p.m. pursuant to Rule 11.5 of the High Court Rules

WESTPAC NEW ZEALAND LIMITED v YARROW [2018] NZHC 452 [15 March 2018]

[1] On 19 September 2017 I issued a judgment in this matter in which I made an order that Mr Yarrow was to be adjudicated bankrupt at the date and time when the judgment was issued by the Registrar of the High Court. An order for adjudication was sealed on 19 September 2017. Westpac New Zealand Limited (Westpac) as the substituted creditor now seeks costs against Mr Yarrow. Mr Yarrow through his counsel, Mr D G Collecutt, says that he will abide the decision of the Court on the matter of costs.

[2] I am satisfied that Westpac is entitled to recover its solicitor/client and counsel costs relating to this matter because it has a contractual entitlement to do so which is recognised by r 14.5(4)(e) of the High Court Rules. That entitlement arises out of clause 4 of the Deed of Guarantee and Indemnity which was executed by Mr Yarrow on 28 January 2009. Clause 4 of the guarantee plainly gives rise to such an entitlement and in the absence of any argument to the contrary I consider that an order ought to be made for the full costs on the basis which Westpac seeks.

[3] The proceeding which I was required to hear became unjustifiably complicated because of the introduction of many issues of marginal relevance and a failure to clearly plead exactly what the defences were. The shifting ground upon which Mr Yarrow based his defence not only contributed to the length of the judgment which I was obliged to issue but, no doubt, exacerbated the legal costs which Westpac incurred.

[4] I accept that Westpac was justified in instructing senior counsel, Mr B Stewart QC in this matter. The amount of the deficiency which was left owing to Westpac after the receivership of the Yarrow companies was not less than $15,000,000. I accept that Mr Yarrow was not personally obliged to pay all of that amount but he was obliged to pay a substantial part of it. The sums were considerable. The nature and extent of the opposition which Mr Yarrow put forward in answer to the application also justified enlisting the assistance of senior counsel.

[5] The hearing itself took approximately three days. It ought not to have taken that long and the blame for that occurring primarily rests with Mr Yarrow and the way he instructed his counsel in the matter.
[6] Westpac seeks first of all the recovery of the costs which it paid to its solicitor, Simpson Grierson and which totalled $185,404.50. In the absence of any grounds upon which it might be suggested that these costs are excessive, I can see no reason for disallowing the costs. The other part of the costs is for counsel’s fees which total
$92,290.69 and similar comments apply to those fees.

[7] For all of these reasons there will be an order that Mr Yarrow pay the legal costs incurred by Westpac which I have just detailed.






J P Doogue Associate Judge