Barker v Queenstown Lakes District Council no.2 HC Invercargill CIV 2005-425-000453 - [2007] NZHC 1884

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CIV 2005-425-000453

BETWEEN ROSS BRYAN BARKER Plaintiff

ANDQUEENSTOWN LAKES DISTRICT COUNCIL
Defendant

Hearing: On Papers

Judgment: 21 June 2007

COSTS JUDGMENT NO. 2 OF FOGARTY J

[1] On 20 December this Court awarded the residents costs on a 2B basis with disbursements as fixed by the Registrar. Leave was reserved to receive further submissions if the plaintiff and residents’ solicitors could not agree costs on this basis.

[2] By memorandum dated 5 February, counsel for the residents reported to the Court that they have been unable to resolve costs with the plaintiff. In that memorandum they now sought their costs award of $16,480 plus disbursements to be fixed by the Registrar. They provided a schedule of costs. On 3 April they filed a further memorandum now seeking, in addition, a further award of costs, as the Court deemed appropriate, on the subject of the matters subsequent to the costs decision - their efforts to resolve the question of costs.

[3] The Court Registry have been pressing Ms Vidal, counsel for the plaintiff, for submissions in reply. On my last circuit to Invercargill I spoke to her employee
Ms Murdoch and reiterated the need for submissions.

BARKER V QUEENSTOWN LAKES DISTRICT COUNCIL HC INV CIV 2005-425-000453 21 June 2007

[4] Last week in Christchurch when Ms Vidal appeared before me I reiterated the need for submissions and gave Monday, 18 June, as the deadline.

[5] The original deadline for filing submissions was Friday, 23 March. That was to reply to the submissions of counsel for the residents calculating costs dated
5 February.

[6] It was against the passing of that deadline that at my request Court staff have continued to press Ms Vidal, and I have done so personally. This Court has bent over backwards to give the plaintiff the opportunity to make submissions on the detail of the calculations. The time has come to issue a judgment. The residents cannot enforce judgment for costs until an order is made. An order should have been made late March/early April. We are now reaching the end of June.

[7] I am not going to order additional costs to the memorandum for the trouble that the residents’ counsel have been put to. This is largely due to the difficulty in calculating an appropriate sum. It could not, in any event, be more than about $500. The result is that the residents are awarded $16,480 costs with disbursements to be fixed by the Registrar.

Solicitors:
Berry & Co, Queenstown, for Plaintiff
Ross Dowling Marquet Griffin, Dunedin, for Defendant Bray Morrall Law, Christchurch, for Professor Goodwin Anderson Lloyd Caudwell, Christchurch, for Mr Muirhead & Ors

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Barker v Queenstown Lakes District Council no.2 HC Invercargill CIV 2005-425-000453 [2007] NZHC 1884
Case: [2007] NZHC 1884
Decision Date: 21 June 2007

CaseChat Overview and Summary

The High Court of New Zealand in Invercargill considered a case between Ross Bryan Barker, the plaintiff, and the Queenstown Lakes District Council, the defendant. The dispute centred around costs that had been previously awarded to the residents in a 2B basis with disbursements as fixed by the Registrar. The residents sought an increase in the awarded costs due to difficulties in resolving the matter with the plaintiff. The Court was required to determine whether additional costs should be awarded to the residents for their efforts in resolving the cost dispute with the plaintiff.

The court examined the timeline of events and the efforts made by both parties to resolve the issue of costs. The court noted the repeated reminders and extensions given to the plaintiff's counsel to submit their response to the residents' cost calculations. Despite these efforts, the plaintiff failed to submit any response, leading to the court's decision on the matter. The court determined that while it was not appropriate to award additional costs for the residents' efforts, it was necessary to issue a judgment on the matter to allow the residents to enforce their judgment for costs.

The court ultimately awarded the residents $16,480 in costs, with disbursements to be fixed by the Registrar. The court did not deem it appropriate to award additional costs to the residents for their efforts in resolving the cost dispute with the plaintiff, as the sum could not exceed approximately $500. The court's decision emphasised the importance of timely submissions and the need to enforce judgments for costs.

The final orders of the court were that the residents were awarded $16,480 in costs, with disbursements to be fixed by the Registrar. The court did not award additional costs for the residents' efforts in resolving the cost dispute with the plaintiff. The court reiterated the importance of timely submissions and the need to enforce judgments for costs.

Orders