Barron v Hutton

[2013] NZHC 2656

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-7270 [2013] NZHC 2656

BETWEEN

SUSAN PATRICIA BARRON Plaintiff

AND

ANTHONY MORRIS HUTTON First Defendant

GRAEME TREVOR STEPHENS and

MARY STEPHENS Second Defendants

IAG NEW ZEALAND LIMITED Third Defendant

Hearing:	18 July 2013
Counsel	D M Law for the Plaintiff P M Smith and M Mitchell for the Third Defendant
Judgment:	11 October 2013

JUDGMENT OF WOODHOUSE J (Costs)

This judgment was delivered by me on 11 October 2013 at 11:30 a.m. pursuant to r 11.5 of the High Court Rules 1985.

Registrar/Deputy Registrar

……………………………………

Solicitors:

Ms D M Law, Law & Associates, Solicitors, Auckland

Mr P M Smith / Ms M Mitchell, Fortune Manning, Solicitors, Auckland

BARRON v HUTTON [2013] NZHC 2656 [11 October 2013]

[1]      The plaintiff applied for leave to proceed out of time to review an order that she pay security for costs.  The application for leave was not opposed by the third defendant.  The plaintiff succeeded on the substantive application for review because there had been a material change of circumstances.1   The material change was that, after the original decision of the Associate Judge was delivered, the plaintiff was granted legal aid.

[2]      The direction on costs in the earlier judgment was as follows:

[29]      Costs on the application for review are reserved provided that, if the plaintiff is required under the Legal Services Act 2011 to seek an order for costs, a memorandum in that regard for the plaintiff is to be filed within one month  of  the  date  of  this  judgment  and  a  memorandum  for  the  third defendant two weeks later.

[3]      The plaintiff has been instructed by the Legal Services of the Ministry of Justice to seek an order for costs.  Costs are sought in a sum of $8,756, with that total itemised by reference to the costs scales.  For the plaintiff, Ms Law notes that, although the plaintiff is legally aided, costs are to be dealt with in the normal way.2

The third defendant opposes the application as to quantum.  The payment made by

Legal Services to the plaintiff’s solicitors was $7,097.88.  For the third defendant, Mr Smith submits that should be the sum awarded for costs.  Mr Smith challenges quantum in two other respects:

(a)      Costs  have  been  sought  for  filing  two  interlocutory  applications.

Implicitly this relates to the application for leave and the application for review.  Mr Smith notes that there were two applications but contained within one document.   I am satisfied that there should be allowance for one application only.

(b)The plaintiff seeks  an  allowance for sealing an  order.    Mr Smith submits that that is unnecessary.  I agree.

1      Barron v Hutton [2013] NZHC 2281.

2      Andrew Beck and others McGechan on Procedure (looseleaf ed, Brookers) at [HRPt14.11(1) and (6)].  Reference is made, at (6), to Kawhia Offshore Services Ltd v Rutherford HC Hamilton CP61/99, 10 July 2002.

[4]      I am satisfied that the costs award should be the sum of $7,097.88.  This is for the reasons advanced for the third defendant and one further reason.  The further reason  arises  out  of  the  circumstances  leading  to  the  plaintiff’s  application  for review; that is to say, the grant of legal aid.  Had the plaintiff applied for legal aid at an earlier date the defendants’ earlier application for security may not have been made or, had it been made, would not have succeeded based on my decision on the review.  There may be reasons for the plaintiff ’s delay, but I do not consider it is necessary for further time and cost being spent in exploring that.  The short point is that, in exercise of the Court’s overriding discretion, against this background I consider that an award of costs in the sum of $7,097.88 is reasonable.

[5]      Accordingly, there is an order that the third defendant pay the plaintiff’s costs

in a sum of $7,097.88.

Woodhouse J