Ah Kit v Smith HC Wellington CIV-2009-485-1893

[2011] NZHC 634

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2009-485-1893

BETWEEN  WENDY JANE AH KIT Plaintiff

ANDROBERT DOUGLAS SMITH Defendant

Judgment:      25 May 2011 at 4:00 PM

JUDGMENT AS TO COSTS OF ASSOCIATE JUDGE D.I. GENDALL

This judgment was delivered by Associate Judge Gendall on 25 May 2011 at 4.30 pm under r 11.5 of the High Court Rules.

Solicitors:           Hunter & Co, Solicitors, PO Box 2772, Wellington

Szigetvary Law, PO Box 3643, Shortland Street, Auckland 1140

WJ AH KIT V RD SMITH HC WN CIV-2009-485-1893 25 May 2011

Introduction

[1]      This judgment deals with an application by the defendant for costs relating to certain aspects of two recent Judicial Settlement Conferences which were scheduled in this proceeding but did not proceed at the behest of the plaintiff.

[2]      The first Judicial Settlement Conference was scheduled for 8 February 2011. On 28 January 2011 at the plaintiff’s request it was rescheduled to take place on 10

March 2011 because it seems a medical report to be obtained by the plaintiff from a

Dr Mossman and made available to the defendant had, not at that point, appeared.

[3]      Then, on 4 March 2011 counsel for the plaintiff filed a memorandum in this Court requesting that the 10 March 2011 settlement conference also be vacated. This was because, following provision of certain medical evidence, the plaintiff said she now intended to join three additional defendants as parties to this proceeding.  Those three parties were apparently firms of solicitors, two of which are in Melbourne, Australia.   There seemed to be no alternative at that point but to accept the last minute request for the Judicial Settlement Conference to be vacated and on 7 March

2011, an order to this effect was made.

[4]      In making that order on 7 March 2011 I noted that counsel had signalled that the defendant intended to seek costs and disbursements for the late cancelled Judicial Settlement Conferences.  Accordingly, directions were made that memoranda on the costs question were to be filed. Those memoranda have now been filed.

[5]      From the memorandum from counsel for the plaintiff, it is clearly accepted that the defendant and his advisers incurred costs of $192.34 for cancellation and penalty fees relating to air travel and the like for the adjourned 8 February 2011 settlement conferences.  It is further accepted that these costs should be met by the plaintiff. An order to this effect is to follow.

[6]      The defendant in addition, however, seeks costs on a Category 2B basis for the following:

(a)      Filing  and  service  of  a  memorandum  of  24  January  2011  and appearance at a telephone conference on 28 January 2011 regarding adjournment of the first Judicial Settlement Conference;

Filing and service of memorandum 0.4 days; Appearance at telephone conference 0.3 days;

(b)      Filing  and  service  of  a  memorandum  dated  4  March  2011  and appearance at a 7 March 2011 telephone conference to consider vacating of the 10 March 2011 Judicial Settlement Conference;

Filing and service of memorandum – 0.4 days; Attendance at telephone conference 0.3 days;

(c)      Preparation  for  Settlement  Conference  measured  by  the  1  day scheduled for the conference – 1 day.

[7]      On that basis, costs are sought on a Category 2B basis totalling 2.4 days at

$1,880.00 per day amounting to $4,512.00.   This is  in addition to the $192.34 disbursements noted above.

[8]      In  response,  the  plaintiff  raises  no  issue  as  to  whether  Category  2B  is appropriate  here,  but  submits  that  the  work  done  by counsel  for  the  defendant towards the aborted Judicial Settlement Conferences will, in any event, be required at a future date in this proceeding and thus no costs award for this work should be made now.

[9]      On this, it is also instructive to note that counsel for the defendant at para 6 of his 18 April 2011 memorandum to this Court notes that:

... the benefit of this work will not entirely be lost, as much will prove relevant
irrespective of the plaintiff ’s amended pleadings ...

[10]     It is on this basis, that counsel for the plaintiff before me maintains it would be appropriate here for costs to be reserved at this time.

[11]     Whilst I agree with the contention from the plaintiff that some of the work completed by the defendant for the aborted Judicial Settlement Conferences will not be lost, in my view an award of costs is appropriate here for the memoranda and appearance at the January and March telephone conferences (which would not have been required but for the defaults on the part of the plaintiff) and for a portion of the preparation time for the Judicial Settlement Conferences.  On this latter issue, in my view, an allowance for ½ of a day for possibly wasted preparation for the Judicial Settlement Conferences would be appropriate.

[12]     That said, the amount sought by counsel for the defendant for costs here totalling 2.4 days is to be reduced to 1.9 days (taking into account the 0.5 of a day costs now allowed for preparation for the Judicial Settlement Conferences).   At

$1,880.00 per day this amounts to $3,572.00.

[13]     An order for costs is now made in this matter with respect to the two aborted Judicial Settlement Conferences in favour of the defendant against the plaintiff for the sum of $3,572.00 representing Category 2B costs as noted in [12] above together with the sum of $192.34 for disbursements noted in [5] above.

‘Associate Judge D.I. Gendall’