Beaney v Buckley

[2024] NZHC 3295

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2024-404-000440

[2024] NZHC 3295

UNDER

Part 19 of the High Court Rules 2016 and subpart 5 and 6 of the Property Law Act 2007

IN THE MATTER OF

An originating application for orders for the sale of the property at 9 Franklyne Road, Otara, Auckland and the division of proceeds amongst co-owners

BETWEEN

PRISCILLA ANN TE ARAHURA

BEANEY and RA HAPATI HARDING
Applicants

AND

MOREHU BUCKLEY

Respondent

On the papers

Counsel:

T D Bloy for the Applicants

A C-N Fuiava and S Ghil for the Respondent

Judgment:

7 November 2024

JUDGMENT OF TAHANA J

[Costs]

This judgment was delivered by me on 7 November 2024 at 12 noon Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

Solicitors/Counsel:

Evolution Lawyers, Auckland Denham Bramwell, Auckland

BEANEY v BUCKLEY [Costs] [2024] NZHC 3295 [7 November 2024]

Introduction

[1]                 In my judgment of 18 September 2024, I declined to grant leave for the applicants to commence proceedings by way of originating application.1 The respondent, Ms Buckley, is legally aided and seeks costs on a 2B basis of $6,214.00. The applicants say that costs on a 2A basis of $2,509.50 are appropriate.

[2]                 I must therefore determine whether the time reasonably required for each step falls within band A or band B.

Relevant law

[3]                 Costs are at the discretion of the Court.2 The applicable principles include that the party who fails should pay costs to the party who succeeds.3

[4]                 Costs should be assessed by applying the appropriate daily recovery rate to the time considered reasonable for each step reasonably required in relation to the interlocutory application.4 Here, the parties agree on the daily recovery rate (category

2) but not on the time allocation for each step claimed.

[5]                 A determination of what is a reasonable time for a step must be made by reference:5

(a)to band A, if a comparatively small amount of time is considered reasonable; or

(b)to band B, if a normal amount of time is considered reasonable; or

(c)to band C, if a comparatively large amount of time for the particular step is considered reasonable.

1      Beaney v Buckley [2024] NZHC 2697.

2      High Court Rules 2016, r 14.1.

3      Rule 14.2(1)(a).

4      Rule 14.2(c).

5      Rule 14.5(2).

[6]                 The Court, especially in an interlocutory application, focuses on the complexity of the issues and the time involved in formulating arguments, not ordinarily on the length of written synopsis.6

Should costs be based on band A or band B?

[7]The difference in time allocations between band A and band B are as follows:

Sch 3 item	Description	Time Allocation (A)	Time allocation (B)
23	Filing opposition to interlocutory application	0.3	0.6
24	Preparation of written submissions	0.5	1.5
25	Appearance at hearing of defended application for sole or principal counsel (set down for a half day, actual hearing time 10am-12:30pm)	0.25	0.5
Total costs		$2,509.50	$6,214.00

[8]                 Counsel for Ms Buckley submits that the actual costs incurred, along with the complexity of the issues addressed during the hearing, demonstrate that band B is the appropriate time allocation.

[9]                 The issue to be determined was reasonably straight forward — whether it was in the interests of justice to grant leave for the proceedings to be brought by way of originating application. That required consideration of the issues in dispute in the proceeding and the most appropriate procedural way forward. While I accept that the proceeding is appropriately categorised as category 2, the relevant question is whether a comparatively small amount of time was considered reasonable given the nature of the interlocutory application. I consider that it was and that a normal amount of time was not warranted given the nature of the application.

[10]              As to actual costs, the letter confirms the total legal aid paid as of 17 September 2024 is $16,411.45 (including GST). The evidence indicates that Ms Buckley instructed counsel in August 2023, approximately seven months before the application

6      Minister of Education v James Hardie [2018] NZHC 2960 at [16].

was filed on 1 March 2024. The letter does not provide a breakdown of actual costs relating to the application to enable the Court to determine actual costs relating to the application. I do not therefore consider that this supports a higher award of costs based on band B.

[11]              The applicants submit that the hearing did not take the allocated half-day and consequently, the respondent should only be awarded costs on the basis of 0.25 days, rather than 0.5 days. The actual hearing went for almost a half-day from 10 am to

12.30 pm. In these circumstances, I do not accept that it is reasonable to only award time for a quarter day.

[12]              I am satisfied that 2A costs are appropriate and that the time allocated for the appearance at the hearing should be 0.5 days. I therefore award costs as follows:

Sch 3 item	Description	Time Allocation (A)	Costs at $2,390 per day
23	Filing opposition to interlocutory application	0.3	717.00
24	Preparation of written submissions	0.5	1,195.00
25	Appearance at hearing of defended application for sole or principal counsel (set down for a half day, actual hearing time 10am- 12:30pm)	0.5	1,195.00
Total			$3,107.00

Result

[13]The applicants are to pay costs on a 2A basis to the respondent in the sum of

$3,107.00.

Tahana J