Ballandine v Gower

[2013] NZHC 2030

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-1157 [2013] NZHC 2030

BETWEEN

BALLINDINE LIMITED Plaintiff

AND

ROGER HAMILTON GOWER Defendant

SEAN ROBERT JOYCE Third Party

Hearing:	8 August 2013
Appearances:	Ms A Borchardt for Plaintiff Mr M Pascariu for Defendant
Judgment:	8 August 2013

ORAL JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE

BALLINDINE LIMITED v GOWER [2013] NZHC 2030 [8 August 2013]

[1]      Some matters have arisen following the issue of the judgment in this matter of 23 July 2013.

[2]      The first matter concerns the figure adopted in the judgment for the amount for which judgment was to be entered.   The judgment incorporated the figure of AUD  $339,796.21.    The  plaintiff  says  that  that  figure  found  its  way  into  the judgment because of an error in the synopsis of submissions which contained it. Counsel for the plaintiff says the correct figure is AUD $399,796.21.  It seems to me that this is a matter which can be corrected pursuant to r 11.10 and I make an order accordingly.

[3]      The plaintiff also sought costs on a client-solicitor basis.  There were three components to the make-up of the costs claimed:

(a)       Legal costs incurred in Australia  AUD $8,679.44

(b)Legal costs incurred in New Zealand prior     to    commencement     of proceedings  NZD $7,806.29

(c)       Costs of the action including the hearing which were claimed in the sum of  NZD $50,105.83

[4]      Evidence  was  adduced  at  the  summary  judgment  hearing  of  a  barrister, Mr Foote concerning the proprietary of the first two of the charges set out above. There was no evidence concerning the third element of the costs claim, that is the NZD $50,105.83 other than evidence that such amounts had been invoiced to the client.

[5]      Mr  Pascariu  for  the  defendant  said  that  there  were  two  aspects  to  the legitimacy of this cost claim that were of concern.   The first part concerned the matters for which the solicitors acting had invoiced the plaintiff.  He gave as an example charges which were apparently rendered to the plaintiff that arose from the plaintiff considering the application for leave for the defendant to issue a third party

proceeding.  Mr Pascariu submitted that such costs were not properly recoverable. The second aspect of the matter was the quantum of the costs.

[6]      Mr Pascariu accepted that the defendant had not identified any deficiencies in the claim for costs either in his notice of opposition or evidence given by affidavit for the summary judgment hearing.

[7]      In my view the starting point is that the actual costs charged to the plaintiff are not to be viewed as prima facie, irrecoverable or requiring scrutiny.  There may be  circumstances  surrounding  the  claim  for  costs  which  require  the  Court  to intervene.  For example, if a claim for costs was self-evidently so extravagant as to suggest that they exceeded what was justifiable then the Court may well decline to order those costs without further enquiry having been first undertaken.  The costs in this case are substantial.  They are not however within the category to which I have just been referring.  Given the absence of any formulation of grounds for opposing the recovery of the costs because they were not connected with the proceedings or that they are excessive or for some other reason, I consider that it is reasonable to make an order in favour of the plaintiff for the recovery of the amounts in question and I so order.

[8]      The position  therefore  is  that  there  is  currently owing  the sum  of AUD

$442,794.42 based upon interest calculated to 1 July 2013.  In addition there is to be added  to  the  amount  of  judgment  the  three  costs  items  to  which  I  have  made reference and which total is the sums of AUD $8,679.74 and NZ $57,912.12.  There will be judgment for the plaintiff.

[9]      Mr Gower has brought third party proceedings against Mr Joyce, the solicitor. Those proceedings now require to be progressed.  The proceeding is to be listed for mention at 9 a.m. on 17 September 2013 which is to be regarded as the return date in the application for third party relief.  A copy of this judgment is to be served on the third party, Mr Joyce, so that he is aware of the next mention for the third party application.

J.P. Doogue

Associate Judge