Callaghan and Raymont v Zevering

In the case of Callaghan and Raymont v Zevering, the applicants sought orders under rule 709A(3) of the Uniform Civil Procedure Rules 1999 to fix the first respondent’s costs after she had failed to serve a costs statement on them as required by rule 705. The applicants argued that they were entitled to have the first respondent’s costs fixed following her failure to comply with the court’s earlier orders to serve a costs statement. The first respondent had previously been ordered to serve a costs statement on the applicants, but she did not do so. Instead, she filed a statement of costs for her own costs in the proceedings. The applicants applied for orders to fix the first respondent’s costs, arguing that the first respondent had failed to serve a costs statement and that they were entitled to have her costs fixed in accordance with rule 709A(3).

The court was required to determine whether orders under rule 709A(3) should be made to fix the first respondent’s costs. The court noted that the first respondent had failed to serve a costs statement on the applicants, despite being ordered to do so. The court also noted that the first respondent had filed a statement of costs for her own costs in the proceedings, but had not served a costs statement on the applicants. The court considered the provisions of rule 709A(3) and held that the applicants were entitled to have the first respondent’s costs fixed. The court noted that the first respondent had failed to comply with the court’s earlier orders to serve a costs statement and that the applicants were entitled to have her costs fixed in accordance with rule 709A(3). The court also noted that the first respondent’s costs should be paid out of the Outlook Estate Trust.

The court ordered that the first respondent’s costs be fixed in accordance with the order made on 14 September 2010 by the Supreme Court, that the first respondent be awarded her costs of the applicants’ application on the indemnity basis to be paid out of the Outlook Estate Trust, in the amount of $10,000.00. The court also ordered that the amount of $44,000.00 owing to the first respondent for costs be paid into Court, calculated as follows: (a) the amount of $10,000.00, being the first respondent’s costs fixed under r 709A(3) in paragraph 1 above; (b) the amount of $26,000.00, being the first respondent’s costs fixed under r 709A(3) in relation to the order made on 23 September 2011 by the Court of Appeal that the first respondent be awarded one half of her costs of the cross application in the Supreme Court proceedings no. 10480 of 2009 to be assessed on the standard basis to be paid out of the Outlook Estate Trust; (c) the amount of $8,000.00, being the first respondent’s costs fixed under r 709A(3) in relation to the order made on 23 September 2011 by the Court of Appeal that the first respondent be awarded the appellant’s costs of the Court of Appeal proceedings no. 10552 of 2010 on an indemnity basis to be paid out of the Outlook Estate Trust. The court further ordered that the applicants be entitled to withhold and retain from the amounts to be paid into Court the amount of $22,991.89 due from the first respondent to the applicants. Finally, the court ordered that the first respondent pay the applicants’ costs of this application on the standard basis fixed in the amount of $6,706.21, and that the balance of the applicants’ costs of this application be paid on the indemnity basis out of the Outlook Estate Trust.