Anderson v DeMarco

[2020] NZHC 1349

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2018-485-622

[2020] NZHC 1349

BETWEEN

NORMAN HUGH ANDERSON and REBECCA ALICE CARRASCO
Plaintiffs

AND

EUGENE JOHN DE MARCO

Defendant

Counsel:	S Dalzell and B Lambert for plaintiffs/respondents G Shand for defendant/respondent
Judgment:	16 June 2020

COSTS JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

[On the papers]

[1]                 This costs judgment follows the hearing of Mr De Marco’s interlocutory application on 18 March 2020 in which he was largely unsuccessful.

[2]                 At the conclusion of the hearing I delivered an oral judgment. A question has arisen as to whether I dealt finally with costs. Regrettably, although I have requested a transcript, it would seem that there was some sort of technical error with the result that the hearing was not recorded. However, the Registrar did log the progress of the hearing and it is quite clear from this log that counsel were given an opportunity to make submissions as to costs and I ruled on them. My own recollection is that I ordered that Mr De Marco should pay costs to the plaintiffs on a 2B basis. I told counsel that I would deliver my reasons in writing in due course which I ultimately did in my reasons dated 29 April 2020.

[3]At the conclusion of my reasons I said:

ANDERSON v DE MARCO [2020] NZHC 1349 [16 June 2020]

[46] I reserve costs as I have not heard from counsel in relation to these. It may well be that in the particular circumstances of this case Mr Anderson and Ms Carrasco wish to focus their efforts on preparation for trial and leave the trial judge to deal with costs in connection with this application along with costs in the substantive trial. If, however, the parties prefer to deal with costs at this stage, and counsel are unable to agree, the parties may come back to me by memorandum for that purpose in the usual way.

[4]                 Understandably, having regard to the terms of paragraph [46], the plaintiffs now seek costs, and they do so on a solicitor and client basis.

[5]                 The defendant’s response is that the Court’s judgment was as I described it on 18 March 2020 at the conclusion of the hearing, that there has been no appeal from any aspect of that judgment, that the Court is therefore functus officio in relation to all matters disposed of including costs. In other words, Mr Shand says, despite the terms of paragraph [46] of my reasons, it is not open the Court to revisit costs.

[6]It appears to me that that must be correct.1

[7]                 I am bound to acknowledge that paragraph [46] of my reasons may have led to this confusion and resulted in the plaintiffs perceiving themselves to have an opportunity to seek above  scale  costs.  But, as  I  say,  the  position  advanced  by Mr Shand and described above appears to me to be correct.

[8]                 That leaves only one minor area of controversy. The plaintiffs seek a certification for second counsel and this is resisted by the defendant. This was an interlocutory application, but was not without its complexities. It is a matter that would have required a considerable amount of the work for the hearing. In the circumstances, I am prepared to certify for second counsel.

[9]Accordingly, the plaintiffs will have their costs in the sum of $6,811.50 as set

1      See r 11.4 and the Court of Appeal’s discussion in Bell-Booth v Bell-Booth [1998] 2 NZLR 375 (CA).

out in the schedule attached to Parker & Associates’ letter of 20 March 2020.

Associate Judge Johnston

Solicitors:

Parker & Associates, Wellington for plaintiffs Grant Shand, Auckland for defendant