Bilkey v Kyriak

[2021] NZHC 599

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-1822

[2021] NZHC 599

BETWEEN

ROBERT MACKENZIE BILKEY, LYNNETTE MARGARET BILKEY and HAURAKI TRUSTEE SERVICES (2008) LIMITED
Appellants

AND

MICHAEL THOMAS KYRIAK and CHRISTINA MOIRA JUDITH CIE

Respondents

Hearing:	On the papers
Appearances:	W McCartney for Appellants Respondents in person
Judgment:	24 March 2021

JUDGMENT OF LANG J

[on costs]

This judgment was delivered by me on 24 March 2021 at 11 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

Solicitors:

Duncan King Law, Auckland

W McCartney, Barrister, Auckland

Copy to: Respondents

BILKEY v KYRIAK [2021] NZHC 599 [24 March 2021]

[1]        On 25 February 2021 I delivered a judgment dismissing an appeal by Mr and Mrs Bilkey against an award of costs made in favour of Mr Kyriak and Ms Cie in the District Court.1 The parties have been unable to reach agreement regarding costs on the appeal. I am therefore required to determine that issue based on the memoranda both parties have filed.

The arguments

[2]        In my judgment I recorded my tentative view that, as the successful parties on the appeal, Mr Kyriak and Ms Cie should receive costs on a Category 2 Band B basis together with disbursements as fixed by the Registrar. I indicated I would allow costs calculated at .5 of a day to reflect the fact that I had requested counsel to file memoranda after the hearing to address a particular issue.2

[3]        Mr Kyriak and Ms Cie now seek costs on a Category 2B basis, but uplifted by 50 per cent to reflect the following factors:

(a)Delays by Mr and Mrs Bilkey in filing and serving documents relevant to the appeal.

(b)The fact that the appeal was without merit.

(c)The fact that Mr and Mrs Bilkey failed to accept a reasonable offer of settlement prior to the hearing.

The issue of delay

[4]        Mr Kyriak and Ms Cie point out that the Court made timetabling directions by consent on 22 October 2020. These required the appellants to take the following steps:

(a)To file and serve the common bundle no later than 24 November 2020. The common bundle was not filed and served until 3 December 2020.

1      Bilkey v Kyriak [2021] NZHC 264.

2 At [58].

(b)To file and  serve  their  submissions  and  chronology  no  later  than 1 December 2020. The submissions and chronology were not served until 7 December 2020.

(c)To file and serve their bundle of authorities no later than 11 February 2021. The  bundle  of  authorities  was  not  filed  and  served  until  15 February 2021.

[5]        I consider the delays in complying with the timetable directions to be minor and, in any event, are largely  explained by Mr McCartney,  counsel for Mr and    Mrs Bilkey, in his memorandum dated 12 March 2021. There is no justification for any increase in costs to reflect this factor.

The appeal being without merit

[6]        It is obvious from reading the judgment that the issues Mr and Mrs Bilkey raised on the appeal were arguable. The fact that they were ultimately unsuccessful does not affect that fact. I therefore do not consider there should be any increase in costs on the basis that Mr and Mrs Bilkie advanced arguments that had no merit.

Failure to accept an offer of settlement

[7]        In support of this argument Mr Kyriak relies on the fact that he sent an email to Mr and Mrs Bilkey’s solicitors on 11 December 2020 offering to settle the appeal on the basis that Mr and Mrs Bilkey paid $23,000 in full and final settlement of the costs award made in the District Court.  If they accepted that offer Mr Kyriak and  Ms Cie would not seek costs in relation to steps taken up until in the appeal. Mr and Mrs Bilkey did not respond to this offer.

[8]        Rule 14.6(3)(b)(v) of the High Court Rules 2016 permits the Court to order increased costs where a party fails, without reasonable justification, to accept an offer of settlement. As I pointed out in my judgment, albeit in a slightly different context, a party may have reasonable justification for rejecting an offer of settlement even if they are ultimately left in a worse position following judgment.3

3      Bilkey v Kyriak, above n 1, at [44].

[9]Mr McCartney points out that the costs fixed in the District Court amounted to

$24,963.35. The offer of settlement required his clients to pay virtually the whole of that sum. Given my finding that the points they wished to raise on the appeal were arguable I accept Mr McCartney’s submission that Mr and Mrs Bilkey had reasonable justification for rejecting the offer and taking their chances on appeal. I therefore do not consider Mr and Mrs Bilkey failed to accept the offer of settlement without reasonable justification.

Issues relating to steps taken

[10]      Mr McCartney submits Mr Kyriak and Ms Cie should not receive costs in relation to the call of the matter on 8 December 2020 and the memorandum they filed in advance of that listing. Mr McCartney says the listing was unnecessary because he had been endeavouring to reach agreement with Mr Kyriak regarding the documents to be included in the bundle but Mr Kyriak was refusing to deal with him.

[11]      When the matter was called at Mr Kyriak’s request on 8 December 2020 Jagose J made the following Minute:

By reason of the appellant’s minorly late filing of his submissions but Mr Kyriak’s other commitments in advance of the Christmas/New Year period, I vary the timetable for filing and service of the respondents’ submissions, chronology, and any additional documents for the common bundle to Monday, 1 February 2021.

[12]      I consider Mr Kyriak ought to  have  been  able  to  reach  agreement  with Mr McCartney regarding new timetable orders that would have avoided the need for the parties to appear on 8 December 2020. Mr Kyriak and Ms Cie are therefore not to receive costs for the steps taken in relation to that listing, including the memorandum they filed in advance of it.

[13]      Furthermore, Mr Kyriak and Ms Cie are not entitled to costs for preparation of the case on appeal. That task was carried out by counsel for the appellants. The fact that the respondents elected to file their own bundle of documents is irrelevant in this context.

Result

[14]      Mr Kyriak and Ms Cie are entitled to costs on the appeal in the sum of $13,145, together with disbursements in the sum of $50.

Lang J