Annan v Douglas
[2020] NZHC 1987
•7 August 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2019-404-771
[2020] NZHC 1987
BETWEEN REBECCA MARY ANNAN
Plaintiff
AND
SCOTT JAMES DOUGLAS
First Defendant
CHRISTOPHER JAMES MANSFIELD
Second Defendant
Hearing: On the papers Appearances:
R O Parmenter for Plaintiff First Defendant in person Second Defendant in person
Judgment:
7 August 2020
JUDGMENT OF LANG J
[on applications for recall of judgment]
This judgment was delivered by me on 7 August 2020 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date……………
Solicitors:
Daniel Overton & Goulding, Onehunga R O Parmenter, Barrister, Auckland
ANNAN v DOUGLAS [2020] NZHC 1987 [7 August 2020]
[1] Counsel for Ms Annan has applied by memorandum dated 5 August 2020 for an order recalling my costs judgment issued earlier that day.1
[2] Ms Annan seeks recall of the judgment because she contends I have inadvertently included an incorrect figure at [8](c) of the judgment. Rather than
$5767.75, Mr Parmenter contends on Ms Annan’s behalf that the correct sum should
be $11,535.71.
[3] The defendants have filed a joint memorandum dated 7 August 2020 responding to Mr Parmenter’s memorandum and submitting that I should recall the judgment to correct other errors. Mr Parmenter then responded by memorandum filed earlier today.
[4]This judgment deals with both applications for recall.
Preliminary issue
[5] Before dealing with the applications for recall I propose to deal with a preliminary issue. Mr Parmenter’s memorandum responds to my direction (at [15] of the judgment) that he should confirm he has forwarded Ms Annan an invoice for his services that exceeds the amount she has been awarded by way of costs. The defendants remain concerned that the invoice may not reflect the true situation, and that Mr Parmenter may have reached a side arrangement with Ms Annan under which she will receive more by way of costs than she is required to pay Mr Parmenter for his services. They submit:
9. We respectfully request that a clearer more sincere statutory declaration to the effect that the funds derived from the costs order will be paid to Mr Parmenter by Ms Annan to offset the amount rendered in his invoice, that will recover the amounts that exceed the costs award and that he will retain the entire amount – including the $7,000 – as authentic taxable income.
[6] I am not prepared to make such an order and I doubt very much whether I have the jurisdiction to do so in any event. It would be a serious breach of ethical standards for Mr Parmenter to advise the Court that the award of costs is less than his client will be required to pay to him if that does not reflect the true position. If the defendants have reason to believe Mr Parmenter has not been candid with the Court
1 Annan v Douglas [2020] NZHC 1934.
they have avenues of redress under the Lawyers and Conveyancers Act 2006. For present purposes, however, I am not prepared to take the matter further.
The applications for recall
[7]Rule 11.10 of the High Court Rules 2016 provides as follows:
11.10 Correction of accidental slip or omission
(1)A judgment or order may be corrected by the court or the Registrar who made it, if it—
(a)contains a clerical mistake or an error arising from an accidental slip or omission, whether or not made by an officer of the court; or
(b)is drawn up so that it does not express what was decided and intended.
(2)The correction may be made by the court or the Registrar, as the case may be,—
(a)on its or his or her own initiative; or
(b)on an interlocutory application.
[8] The courts have held that it is not necessary for an interlocutory application to be filed seeking recall of a judgment, particularly where the correction sought is minor. As a minimum, however, a formal memorandum should be filed.2 In the present case the parties have filed formal memoranda and I am prepared to deal with both applications for recall as having been properly made.
Ms Annan’s application
[9] Mr Parmenter has explained why the figure of $5,767.75 is incorrect. The defendants have not engaged with the substance of this issue. Rather, they reiterate their position that the settlement agreement “was based on unlawful expectations”.
[10] This is not a valid ground to oppose the application. I am satisfied the figure used in [8](c) was an accidental slip or error on my part and I propose to correct it by recalling the judgment to correct the error. The sum of $5,767.75 referred to at [8] (c) of the judgment will be replaced with the sum of $11,535.71.
The defendants’ application
[11]
Equally, I am satisfied that I erred in fixing the time allocations for step 23 (Notice of Opposition to transfer) and step 11 (Memorandum for mention of transfer).2 Practitioner Y v Foulkes [2014] NZCA 396, (2014) 22 PRNZ 331 at [34].
The time allocations for these steps ought to have been .3 and .2 of a day respectively because those are the time allocations prescribed under Band A. This reduces the amounts claimed for those steps to $477 and $318 respectively.
[12] I am also satisfied that I used an incorrect time allocation for step 33B. This should have been one day rather than two. As a result, the costs payable would be
$2,390 rather than $4,780.00.
[13] I decline to revisit the incidence of costs awarded on the transfer application. That is a matter of substance and should not be revisited through an application for recall of judgment.
[14] I likewise decline to revisit the band allocation for inspection of the second defendant’s documents. This involved Mr Parmenter engaging in correspondence with Mr Mansfield regarding the scope of discovery to be provided. It resulted in Mr Mansfield filing a second list of documents. This explains why I allocated Band B rather than Band A for this step. It is also a matter of substance and I decline to revisit it.
[15] I therefore propose to recall the judgment and reissue it correcting the four errors Mr Parmenter and the defendants have identified.
Lang J
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