Boswell v Korving
[2022] NZHC 2469
•22 September 2022
NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B,
11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE
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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2021-404-1735
[2022] NZHC 2469
BETWEEN KATHRYN FRANCES BOSWELL
Applicant
AND
ANTHONY ROBERT KORVING
First Respondent
ANTHONY ROBERT KOVING and
GRAHAM GUNN as trustees of the ROBERT KORVING FAMILY TRUST
Hearing: On the papers Counsel:
K F Boswell in person
M A Tapsell for Respondents
Judgment:
22 September 2022
JUDGMENT OF WOOLFORD J
(Costs)
This judgment was delivered by me on Wednesday, 28 September 2022 at 12:30 pm
pursuant to r 11.5 of the High Court Rules.
Solicitors: Law & Associates (M A Tapsell), Auckland Copy to: Applicant
BOSWELL v KORVING [2022] NZHC 2469 [22 September 2022]
[1] On 5 August 2021, Judge J G Adams ordered discovery of Ms Boswell’s medical records.1 Ms Boswell filed an appeal against the order on 27 August 2021. Ms Boswell later filed an affidavit from a general practitioner dated 7 September 2021.
[2] On 9 December 2021 I granted Ms Boswell’s appeal, as the affidavit made a blanket discovery order unnecessary.2
[3]Ms Boswell now seeks an award of costs.
Legal principles
[4] As a self-represented litigant, Ms Boswell is unable to claim costs.3 She may, however, claim disbursements, provided they meet the test in rule 14.12 of the High Court Rules 2016 (Rules), that is, they are specific to the conduct of the proceeding, reasonably necessary for the conduct of the proceeding, and reasonable in amount.4
Claim
[5] Ms Boswell acknowledges the above principles, and claims only the following disbursements, for which she attaches her invoices:
(a)$540.00 – filing fee;
(b)$640.00 – scheduling fee;
(c)$162.17 and $20.85 – photocopying and stationery;
(d)$4.50 – courier;
(e)$460.00 – doctor’s fee;
(f)$16.60 – travel to Kaeo;
1 Boswell v Korving [2021] NZFC 7834.
2 Boswell v Korving [2021] NZHC 3373.
3 McGuire v Secretary for Justice [2018] NZSC 116, [2019] 1 NZLR 335 at [55].
4 High Court Rules 2016, r 14.12(2)(b)–(d).
(g)$33.20 – travel to Kaeo to prepare the doctor’s affidavit;
(h)$149.40 – travel to Kerikeri three times, for the purposes of photocopying, and signing of the affidavit of Sarah Wynyard-Davis on 7 August 2021;
(i)$2,449.50 – legal advice from Lady Deborah Chambers KC;
(j)$463.14 – travel to Lady Chambers;
(k)$1,150.00 – online legal services.
Submissions
[6] Mr Tapsell, counsel for Mr Korving, submits no award of disbursements should be made, because, had Ms Boswell filed the doctor’s affidavit in the Family Court, her appeal may not have been necessary.
[7] Ms Boswell replies that she attempted unsuccessfully to bring the doctor’s evidence, then in the form of a letter, to the attention of the Family Court.
[8] Alternatively, Mr Tapsell addresses the claimed disbursements one by one. He accepts disbursements (a) to (d) meet the test in r 14.12. He disputes the remaining disbursements.
[9] On the doctor’s fee and related travel costs, Mr Tapsell submits the invoice is vague, and the sum not reasonable. The attendances were after the appeal was filed and were not reasonably necessary for the conduct of the proceeding.
[10] Ms Boswell submits the doctor’s affidavit was the reason the appeal was granted; it was clearly necessary. As the invoice records, the doctor was forced to make a lengthy round trip to attend the appointment, which accounted for much of the fee. There is a general shortage of doctors in Northland, and particularly at the time of the appeal.
[11] On the legal fees, Mr Tapsell notes the invoice from Lady Chambers does not specify the purpose of the services provided. It is however stated to be for “professional services for the period to 6 July 2020”. Mr Tapsell submits this cannot possibly relate to this appeal, which was filed in August 2021.
[12] Ms Boswell replies that, if necessary, she will seek confirmation from Lady Chambers that the services were for “discovery purposes relating to the impending appeal”. She has not included other invoices from Lady Chambers, which relate to the substantive case.
[13] Mr Tapsell also notes the online legal services include periods before the filing of the appeal, and after the appeal was allowed. For the period between filing and decision, Mr Tapsell submits this is more akin to a claim for costs, to which Ms Boswell is not entitled.
[14] Ms Boswell notes disbursements for legal services are an exception to the primary rule that costs follow the event.5 She submits that these legal services will remain relevant until my costs decision is made.
Discussion
[15] Mr Tapsell’s general argument is misplaced. An unnecessary step may justify a reduction in costs under r 14.5 of the Rules, but this rule does not affect disbursements. Disbursements may be refused if they are not reasonably necessary for the conduct of a proceeding; but not, as Mr Tapsell appears to argue, if the proceeding itself was unnecessary.
[16] Mr Tapsell responsibly accepts the disbursements relating to court fees, photocopying and couriers.
[17] As Ms Boswell submits, the doctor’s affidavit was reasonably necessary for the conduct of the appeal; as it was determinative of the appeal. I am also satisfied,
5 Citing Knight v Veterinary Council of New Zealand HC Wellington CIV-2007-485-1300, 31 July 2009, at [6].
given the breakdown of the invoice and Ms Boswell’s explanation, that the disbursement is reasonable in amount.
[18] The additional $16.60 for travel to Kaeo is less clear. The doctor’s invoice includes fees for travel to Ms Boswell, and Ms Boswell later claims $33.20 for travel to Kaeo to finalise the doctor’s affidavit.
[19] The $149.40 for travel to Kerikeri, while not addressed by either party, appears not to be reasonable in amount. Ms Boswell lives approximately halfway between Kerikeri and Kaeo. It is unclear why travelling to Kerikeri was so much more expensive for her. The trips to Kerikeri were for the purposes of photocopying and arranging affidavits. While parties often claim disbursements for travelling to hearings, incidental travel costs are not usually claimable.6
[20] As Ms Boswell submits, self-represented litigants may claim the costs of legal advice related to proceedings as a disbursement. As usual, these must be reasonable in amount, measured by comparison to scale costs that would have been incurred had the party been represented.7 They have not been permitted where the party claims fees for legal advice from non-lawyers.8
[21] In this case, the $2,449.50 for Lady Chambers is reasonable in amount, when compared to the 2B scale costs Ms Boswell would be entitled to were she represented.
[22] However, not only were these costs incurred before the filing of the appeal as Mr Tapsell points out, they were incurred long before the decision under appeal was made. Ms Boswell may be able to claim these costs following the substantive decision, but they cannot possibly relate to this appeal.
[23] The claim for travel costs to Lady Chambers is not a disbursement that would ordinarily be allowed in any event.
6 Te Tumu Miere Ltd (in liq) v Zealande Ltd [2019] NZHC 106 at [2] and [6].
7 Harrison v Keogh [2015] NZHC 3320; Hamilton v Kirwan [2021] NZHC 634 at [42]; and Zhang v Tian [2021] NZHC 3070, (2021) 26 PRNZ 68 at [9].
8 Taylor v Attorney-General [2021] NZHC 2303 at [22].
[24] The online legal services appear to be from Pearl.com and Justanswer.com. As these are not solicitors, Ms Boswell cannot claim them as disbursements. I note also that the disbursements incurred after the hearing are in relation to this claim for costs. Awards of “costs on costs” are only allowed in special circumstances.9
Result
[25]Mr Korving is to pay Ms Boswell costs totalling $1,827.52, comprising:
(a)$540.00 for the filing fee;
(b)$640.00 for the scheduling fee;
(c)$183.02 for photocopying;
(d)$4.50 for a courier;
(e)$460.00 for consultation with a doctor and preparation of the doctor’s evidence.
Woolford J
9 Khurana Trustee Ltd v Castle Backpacker K Road Ltd [2021] NZHC 1315 at [61].
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