Booth v Booth

[2019] NZHC 3484

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2018-485-949

[2019] NZHC 3484

BETWEEN

TANIA BOOTH

Plaintiff

AND

JASON BOOTH

First defendant

RAY CHARLES BOOTH
Second defendant

ANN BOOTH

Third defendant

Counsel:

J Delany for plaintiff

J Maassen for first defendant
A Isac QC for second and third defendants

Judgment:

20 December 2019

COSTS JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

[On the papers]

[1]    In my judgment dated 25 September 2009 I dealt with the first defendant’s application for summary judgment and the second and third defendants’ application for an order striking out the plaintiff’s claim against them.1 I entered summary judgment in the first defendant’s favour and struck out the plaintiff’s claims against the second and third defendants. I reserved costs, assuming that counsel would be able to deal with these without further reference to the Court.

1      Booth v Booth [2019] NZHC 2424, [2019] NZFLR 225.

BOOTH v BOOTH [2019] NZHC 3484 [20 December 2019]

[2]    Regrettably, counsel have been unable to do so and I now have for determination costs applications by both the first defendant and for the second and third defendants.

[3]    Both seek costs on a 2B basis, which is appropriate. I have reviewed the memoranda filed by Mr Maassen on behalf of the first defendant and Mr Isac on behalf of the second and third defendants. Broadly speaking, subject to some minor matters, their costs claims appear to me to be in order.

[4]    For the plaintiff, Mr Delany contends that as she has appealed against my judgment, the determination of costs ought to await the outcome of the appeal. That is not the approach that the courts take. Costs must be determined. Of course, any costs order I make will be subject to any order the Court of Appeal makes on the appeal.

[5]    Over and above that point, Mr Delany raises questions concerning the claim relating to the 28 May 2019 case management conference. I accept that that conference related not only to this proceeding but also other proceedings between the parties. The claim made on behalf of the first defendant (step 13) is to be reduced by two thirds, as is the claim made on behalf of the second and third defendants.

[6]    I decline to order any adjustment to the claims made in respect of the case management conference on 5 June 2019. The time allocation provided for in the High Court Rules 2016 is intended to identify an appropriate allocation of time for all attendances relating to such conferences.

[7]    I accept Mr Delany’s submission that there should be no allowance for sealing of the judgment unless the judgment has been sealed.

[8]    I do not understand Mr Delany’s submission in relation to step 30. This is a claim for the preparation of affidavits, lists of issues and authorities and agreeing a common bundle. Whilst it is true that the plaintiff’s substantive case was not heard, those actions related to preparation for the interlocutory hearing.

[9]On my arithmetic, that would reduce the first defendant’s costs claim to

$18,761.50 plus disbursements and the second and third defendants to $17,699.83 plus disbursements.

[10]   On behalf of the second and third defendants, Mr Isac submits that they should be entitled to a 50 per cent uplift from the date of the exchange of correspondence between the parties’ solicitors in March and April 2019 in which the second and third defendants’ solicitors offered to refrain from claiming costs if the plaintiff would discontinue her claim against them. The plaintiff declined to take up this offer, assuming the position that her claim was properly brought. Whilst this can be a legitimate basis for a claim for an uplift in costs, the issues raised by the plaintiff’s claim were difficult and novel. At the time she declined the defendants’ offer, the plaintiff could not be expected to have appreciated her claim would fail and so she did not act without reasonable justification.2 In any event, such uplifts always remain within the Court’s discretion, and this is a proceeding that would normally have been dealt with in the District Court and is being dealt with in this Court on the application of the first defendant, supported by the second and third defendants. On balance, I am not prepared to order an uplift in the costs.

[11]   I record my understanding — based on indications given to me by Mr Maassen on behalf of the first defendant and by the first defendant himself on behalf of his parents during the course a hearing on another aspect of the litigation on 13 December 2019 — that the three defendants have resolved not to enforce any costs order except in the final wash-up of the Property (Relationships) Act proceeding between Jason and Tania. That, in my view, is a proper concession for the defendants in this proceeding to make.

Associate Judge Johnston

Solicitors:

Chapman Tong Law, Wellington for plaintiff

Wadham Partners, Palmerston North for first defendant Le Pine & Co, Taupo for second and third defendants

2      High Court Rules 2016, 14.6(3)(b)(v).