Banicevich v AMP Services (NZ) Limited

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CIV-2013-404-5272

[2016] NZHC 274

BETWEEN

GREGORY IVAN BANICEVICH

Plaintiff

AND

AMP SERVICES (NZ) LIMITED

First Defendant

THE NATIONAL MUTUAL LIFE ASSOCIATION OF AUSTRALASIA LIMITED

Second Defendant

Hearing:

(on the papers)

Appearances:

M Black and S I Perese for the Plaintiff

D McLellan QC and D Durovich for the Defendants

Judgment:

25 February 2016

JUDGMENT OF WOODHOUSE J

(Costs)

This judgment was delivered by me on 25 February 2016 at 3:30 p.m. pursuant to r 11.5 of the High Court Rules 1985.

Registrar/Deputy Registrar

……………………………………

Counsel/Solicitors:

Mr M C Black, Barrister, Auckland

Mr D Dennis (plaintiff’s solicitor), Hammonds, Solicitors, Dargaville Mr D McLellan QC, Barrister, Auckland

BANICEVICH v AMP SERVICES (NZ) LTD [2016] NZHC 274 [25 February 2016]

Mr D A Campbell and Ms D I Durovich (defendants’ solicitors), Kensington Swan, Solicitors, Auckland

[1]                  In the substantive judgment in this proceeding the plaintiff’s several claims were dismissed, judgment was given for the second defendant on a counterclaim, and there was an order that the defendants are entitled to costs without fixing the quantum.1

[2]                  The defendants have sought costs fixed on a 2C basis for all steps, or at least for discovery and trial preparation, rather than costs on a 2B basis as had been fixed at the first case management conference. The defendants also seek an uplift of 50%.

[3]                  The plaintiff opposes the defendants’ application for costs in excess of the 2B scale. The plaintiff also challenges three items in the defendants’ costs schedule and expresses reservations in relation to the quantum of a fee charged for expert accounting services and evidence.2

[4]                  The submissions for both parties are set out in considerable detail in their costs memoranda. The plaintiff takes issue with most contentions of fact advanced by the defendants. The plaintiff also advances one substantial argument of default by the defendants in support of an argument that some costs items for discovery should be disallowed. I do not intend to summarise the range of issues or my conclusions on each point of contention. In general, costs applications should not require what would amount to an expanded judgment with findings of fact on a range of issues. It is sufficient to record that I am satisfied that a number of the arguments for the defendants have merit, and some of the responses for the plaintiff have merit, but the broad assessment substantially favours the defendants.

[5]                  What also favours the defendants, underpins the preceding conclusion, and provides a firm foundation for an award of costs in excess of the basic 2B scale, are conclusions already recorded, with reasons, in the substantive judgment on all of the plaintiff’s claims and arguments and on the counterclaim.

[6]                  Most significantly, the plaintiff’s primary claim that he had suffered trauma covered by the policy was untenable. The plaintiff’s own expert witnesses, whatever

1      Banicevich v AMP Services (NZ) Ltd [2015] NZHC 2273.

2      The plaintiff’s costs memorandum was filed on 17 November…