IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2018-454-065
[2019] NZHC 1889
BETWEEN RAY CHARLES BOOTH
First Plaintiff
RAY CHARLES BOOTH AND ANNE BOOTH
Second Plaintiffs
AND
POPLAR ROAD FARMS LIMITED
First Defendant
JASON BOOTH
Second DefendantTANIA BOOTH
Third Defendant
Hearing: On the papers Counsel:
A N Isac QC and G M Richards for First Plaintiff J J Delany for Third Defendant
Judgment:
5 August 2019
JUDGMENT OF CLARK J (COSTS)
Introduction
[1] On 12 April 2019 I granted the first plaintiff’s application for rectification of a deed of debt. 1 The effect of rectification was to increase by approximately $428,000 the amount which the first defendant, Poplar Road Farms Ltd, owes to Ray Booth. I concluded that, having succeeded, the first plaintiff was entitled to costs. I reserved
BOOTH v POPLAR ROAD FARMS LIMITED [2019] NZHC 1889 [5 August 2019]
costs in respect of an abandoned interlocutory application pending receipt of an application and memoranda.2
[2]The plaintiffs now seek costs:
(a)against the first defendant in respect of the successful rectification application;
(b)against the third defendant in respect of an abandoned application for leave to bring a derivative action;
(c)on the costs application.
Discussion
Costs on the rectification application
[3] The plaintiffs seek the following costs against the first defendant calculated on a 2B basis except in respect of the preparation of evidence. Those costs are sought under band A as the first plaintiff filed only three affidavits and otherwise relied on affidavits filed in related proceedings.
Step Description Days Sum 1 Commence proceeding 3 6690 3 File reply 0.8 1782 10 Prepare for case management conference 0.4 892 11 File memo for CMC 31 October 2018 0.4 892 13 Attend CMC 31 October 2018 0.3 669 11 File memo for call 4 December 2018 0.2 $446 30 Prepare evidence 1.5(A) 3345 33 Preparation for hearing 3 6690 34 Appearance at hearing 0.25 557.5 22 Filing interlocutory application 0.6 1338 29 Sealing order 0.2 446 Total costs claim $23,749.50 Disbursements Filing fee: statement of claim 1350 Scheduling fee 1600 Interlocutory application 500 Sealing judgment 50 Total costs and disbursements $27,249.50
2 At [48].
[4] For the third defendant Mr Delany submitted costs should be calculated on a 2A basis given the matter proceeded by way of formal proof and most stages were “relatively straightforward”. Mr Delany submitted the time allocations for category A “obviously relate to a normal defended hearing and are not analogous to a formal proof hearing”. Mr Delany offered no authority in support of his position with which I disagree.
[5] Costs are set by reference to the skill and experience requirement of the proceeding and by determining what amount of time is reasonable for particular steps in the proceeding. I am aware of no principle suggesting that where a matter proceeds by way of formal proof it is by that account alone, susceptible to…
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- Case
- [2019] NZHC 1889
- Decision Date
CaseChat Overview and Summary
The court considered the appropriate basis for calculating costs for the rectification application, with the plaintiffs seeking 2B costs except for the preparation of evidence, which they sought under band A. The third defendant argued for a 2A basis, but the court disagreed, stating that the complexity and reasonableness of time taken for discrete steps must apply equally to matters proceeding by way of formal proof as to those that proceed to a contested hearing. The court concluded that scale costs calculated on a 2B basis were appropriate, except for the preparation of evidence.
The court also considered the costs for the third defendant's abandoned application for leave to bring a derivative action. The plaintiffs sought 2B costs with a 50% uplift to reflect the lack of merit in the application and the wasted costs incurred in responding to the application. The court found that the third defendant's financial circumstances did not justify displacing the presumption of costs payable up to the point of discontinuance. However, the court declined to award a 50% uplift as the lack of merit was not "utterly clear." The court did, however, award the plaintiffs modest costs of $1,338 in respect of the costs application.
The first defendant must pay costs to the plaintiffs in the sum of $23,749.50 together with disbursements of $3,500. The third defendant must pay costs to the plaintiffs in the sum of $5,129 on the discontinued interlocutory application, together with disbursements of $110, and $1,338 on the plaintiffs' costs application.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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