Alderton v Sixty-Six Auckland Limited

[2025] NZHC 338

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-137

[2025] NZHC 338

IN THE MATTER

of 199-201 Anzac Valley Road, Waitakere, Auckland

BETWEEN

PETER and LINDA ALDERTON as trustees of the PETER ALDERTON FAMILY

TRUST
Applicants

AND

SIXTY-SIX AUCKLAND LIMITED

First Respondent

DOKAD TRUSTEES LIMITED and PETER WILLIAM MAWHINNEY

Second Respondents

Hearing:

On the papers

Appearances:

A Low for the Applicants

No appearance for the First Respondent or first-named Second Respondent

P W Mawhinney, the second-named Second Respondent, in person

Judgment:

28 February 2025

JUDGMENT OF GAULT J

(Costs)

This judgment was delivered by me on 28 February 2025 at 3:00 pm pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

……………………………………

Parties / Solicitors / Counsel:

Ms A Low, Barrister, Auckland

Mr K Mackie (applicants’ instructing solicitor), Mackie and Co., Auckland The Respondents

ALDERTON v SIXTY-SIX AUCKLAND LTD [2025] NZHC 338 [28 February 2025]

[1]        In my judgment of 13 August 2024 requiring the Aldertons to purchase, and the second respondents to sell, the second respondents’ 1/10 share in a property for

$10,000,1 I said that the Aldertons are entitled to costs against the respondents jointly

and severally.2 I urged the parties to take a reasonable and proportionate approach to finalising costs, and said that if costs could not be agreed, memoranda (not exceeding three pages) may be filed within 20 working days, and I would determine costs on the papers.3

[2]        Costs could not be agreed – Mr Mawhinney did not respond to the applicants’ cost schedule. The memorandum of counsel for the Aldertons seeks costs of

$30,711.50 (calculated on a 2B basis but including an uplift said to be $5,377.50) together with disbursements of $8,609.37. The costs claimed do not include the Aldertons’ costs of successfully opposing a consolidation application, which are the subject of a separate costs application.

[3]        Mr Mawhinney’s only response was by way of an application for a stay pending appeal, which included seeking that any costs award be stayed.

[4]        On 7 November 2024, I granted a limited stay of execution of this Court’s substantive order but declined to stay the payment of any costs award and confirmed that I would determine costs on the papers separately.4 The stay was conditional on a signed undertaking being filed in this Court. I understand no undertaking was filed and so the stay did not take effect.

Applicable costs principles

[5]        The applicable costs principles are well settled. One general principle is that costs follow the event.5

[6]        Another general principle is that costs should be assessed by applying the appropriate daily recovery rate to the time considered reasonable for each step

1      Alderton v Sixty-Six Auckland Ltd [2024] NZHC 2263 [substantive judgment].

2 Substantive judgment, above n 1, at [89].

3      At [89]-[90].

4      Alderton v Sixty-Six Auckland Ltd [2024] NZHC 3290.

5      High Court Rules 2016, r 14.2(1)(a).

reasonably required,6 that is, applying the scale in the High Court Rules 2016. However,  r  14.6(3)  provides  for  increased  costs   in   certain   circumstances.  The Aldertons rely on r 14.6(3)(b)(ii), which provides:

(3)       The court may order a party to pay increased costs if—

…

(b)the party opposing costs has contributed unnecessarily to the time or expense of the proceeding or step in it by —

…

(ii)taking or pursuing an unnecessary step or an argument that lacks merit; …

[7]        As the Court of Appeal said in Bradbury v Westpac Banking Corp in the context of r 14.6(3)(b)(ii), increased costs may be ordered where there is failure by the paying party to act reasonably.7

[8]        The onus is on an applicant for increased costs to persuade the Court that such an award is justified.

Discussion

[9]        The Aldertons seek 2B scale costs in respect of each step in the proceeding (excluding consolidation for present purposes) except for their submissions responding to an application to file further evidence where they seek an uplift of one- third.

[10]I allow the steps claimed (totalling 12.85 days) except that:

(a)I allow 1.5 days rather than 3 days for the preparation of additional affidavits; and

(b)I allow 1.5 days rather than 2 days for submissions responding to the application to file further evidence after the hearing.

6      Rule 14.2(1)(c).

7      Bradbury v Westpac Banking Corp [2009] NZCA 234; [2009] 3 NZLR 400 at [27](b).

[11]Accordingly, 2B scale costs for the total of 10.85 days would be $25,931.50.

[12]      Turning to the claim for increased costs, I consider that Mr Mawhinney’s conduct seeking to adduce further evidence after the hearing did contribute unnecessarily  and  unreasonably  to  the  time  and  expense  of  the   proceeding. His argument in that respect lacked merit. A one-third uplift is appropriate albeit applicable in respect of the 1.5 days I have allowed rather than 2 days. Accordingly, the one-third uplift is $1,195, resulting in total costs of $27,126.50.

[13]      I allow disbursements of $8,609.37 as sought. The amounts are reasonable, including the valuer’s fee, and include GST since the applicants are not registered for GST.

[14]      Given Mr Mawhinney’s role in the proceeding, it is appropriate that the costs award apply in respect of the respondents jointly, severally and in their capacity as trustee.

Result

[15]      The respondents – jointly, severally and in their capacity as trustee – are to pay the applicants’ costs and disbursements totalling $35,735.87.

[16]      As the applicants acknowledge, the $10,000 compensation ordered in my substantive judgment may be set-off the costs to be paid.

Gault J