Boyd v Kendrick

[2020] NZHC 1309

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-2715

[2020] NZHC 1309

IN THE MATTER

of an appeal against costs order of Family Court

BETWEEN

ROGER GRAEME BOYD

Appellant

AND

SUZANNE JOAN KENDRICK

Respondent

Hearing:

On the papers

Counsel:

Appellant on own behalf

C Townsend for the Respondent

Judgment:

12 June 2020

JUDGMENT OF GORDON J

[As to costs]

This judgment was delivered by me on 12 June 2020 at 2.00 pm, pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors:           Urlich Milne, Auckland Counsel:      C Townsend, Auckland

Copy To:           The Appellant

BOYD v KENDRICK [2020] NZHC 1309 [12 June 2020]

Introduction

[1]This is an application for costs by the respondent, Suzanne Kendrick.

[2]        In my judgment of 30 April 2020, I struck out Mr Boyd’s appeal against a costs order made in the Family Court against him in favour of Ms Kendrick. This followed Mr Boyd’s unsuccessful defence of Ms Kendrick’s application for dissolution of their marriage. The appeal was struck out, as it was brought out of time.1 In any event, I considered the appeal on its merits and said that if I had not struck it out I would have dismissed it.2

[3]        I reserved costs. The parties have not been able to agree costs and separate memoranda have been filed.

The claim for costs

[4]        Ms Townsend, for Ms Kendrick, attaches a schedule of 2B scale costs to her memorandum. She calculates scale costs as $9,321 and adds a disbursement of $50, the  fee  for  sealing  a  Court   order,   bringing  the  total  to  $9,371.   A  copy  of Ms Townsend’s schedule of scale costs is annexed to this judgment.

[5]        The claim however is for actual costs incurred. Ms Townsend annexes her invoices to her memorandum. Those invoices total $8,027.51. She adds a disbursement of $50 for sealing a Court order, bringing the total to $8,077.51.3

Mr Boyd’s opposition

[6]        Mr Boyd’s primary submission is that costs should lie where they fall. He submits that “honours are shared” as there were successes and failures on both sides.

[7]        Mr Boyd also addresses the detail of the claim. He submits, in relation to the invoices, that some of the invoiced items were incurred prior to the filing of the appeal

1      Boyd v Kendrick [2020] NZHC 849.

2 At [86].

3      Though Ms Kendrick adds a disbursement of only $5 and records a final total of $8,032.51 in the schedule annexed to her memorandum.

and that the amounts invoiced for preparing the costs memorandum should not be allowed as courts do not generally award costs on costs. Mr Boyd submits the actual costs should therefore be $6,144.45.

[8]        As to scale costs, Mr Boyd submits that some items should be removed and some are excessive. Mr Boyd submits that the total of scale costs, calculated on a 2B basis, should be $2,629.

Should costs lie where they fall?

[9]        Ms Kendrick was successful in arguing that the appeal should be struck out or alternatively dismissed. Although I did not accept some of Ms Townsend’s submissions, that did not affect the overall outcome. Ms Kendrick, as the successful party, is entitled to costs.4 The issue is the quantum of costs.

Scale costs

[10]      A party is not entitled to an award of costs that exceeds the actual costs incurred.5 I apprehend that is why Ms Townsend has claimed what she says are actual costs as invoiced (being less than her calculation of scale costs).

[11]      Ms Townsend has calculated costs on a 2B basis. However, my view is that this proceeding is properly categorised as 2A.6 This was a straight forward matter relating to a costs award in the Family Court which was dealt with on the papers. A comparatively small amount of time is reasonable in the circumstances.

4      High Court Rules 2016, r 14.2(1)(a).

5      Rule 14.2(1)(f).

6      In her memorandum for the case management conference, Ms Kendrick submitted the appeal should be categorised, pursuant to r 14.3, as a Category 2 proceeding. On this basis, she calculated the security for costs for the purposes of r 20.13. Lang J’s minute following the conference did not expressly adopt this categorisation but did direct Mr Boyd to provide security for costs in a sum calculated on the basis of it. By email, Mr Boyd queried aspects of the minute which were addressed by Lang J in a supplementary minute. At [4], the Judge referred to the preparation of submissions by counsel for the respondent. The final sentence of that paragraph noted the time allocated for the preparation of written submission on an appeal is three days (the Judge referred to Schedule 2, which specifies appropriate daily recovery rates, but I apprehend he meant Schedule 3, which contains the time allocation he mentions). Three days is the time allocation for preparing written submissions on appeal in the B band. However, Lang J did not otherwise determine that 2B was the correct categorisation and this comment was made by way of illustration to address one of Mr Boyd’s queries. My decision on the time band is consistent with any determination by Lang J following the case management conference and with r 14.3(2).

[12]      This is also reflected in the nature of the documents prepared by Ms Townsend. In particular, although Ms Townsend was granted leave to adduce fresh evidence, the body of the affidavit filed is only one page. There are four annexures, the most substantial of which is the notes of evidence from the hearing in the District Court. Furthermore, Ms Townsend’s submissions made in the appeal were not lengthy. They ran to five pages, two of which were taken up with a chronology.

[13]      Costs will therefore be calculated on a 2A basis. I will then compare the resulting assessment against the costs as invoiced.

Costs claimed

[14]      Mr Boyd does not object to the costs in item 11B for filing a memorandum for the case management conference or item 13B, the appearance at the case management conference. In his calculations he allows for both at the level claimed but expresses the view that the amounts are excessive. The former (11B) has been addressed by my decision to award 2A scale costs ($478 being an allowance of 0.2 days); objection to the latter (13B) is rejected (and scale costs for that item are the same at 2A or 2B).

[15]      I observe at this point that many of Mr Boyd’s objections or observations on time arise from a comparison of Ms Townsend’s invoices to her client and the costs claimed for each item. However, that is not a relevant consideration. Rule 14.2(1)(e) provides that “what is an appropriate daily recovery rate and what is a reasonable time should not depend on the skill or experience of the solicitor or counsel involved or on the time actually spent by the solicitor or counsel involved or on the costs actually incurred by the party claiming costs” (emphasis added). I will examine Mr Boyd’s other submissions on time below in light of this rule.

[16]      As to item 30, the preparation of evidence, Mr Boyd submits that this item should be disallowed as it is not related to, or appropriate, for an appeal. He also notes that while two days are claimed, the relevant invoice suggests no more than three hours was spent on preparation of the affidavit. Ms Kendrick formally sought leave to file fresh evidence on appeal. Leave was granted and an affidavit from Ms Kendrick was filed. This item is allowed but at the 2A band. The time allowance is therefore one day at $2,390 per day.

[17]      Mr Boyd also takes issue with the time claimed by Ms Kendrick in preparing written submissions (item 56A). He notes Lang J’s minute in which, Mr Boyd says, the Judge said that Ms Townsend was likely to have to spend “around four hours” for her submissions. That misstates what Lang J said. What was actually said in the minute was that “[t]his is likely to require counsel for the respondent to spend at least four hours, which is the same as a half-day” (emphasis added).

[18]      Mr Boyd further submits that an examination of Ms Townsend’s initial memorandum for the case management conference and her subsequent submissions on the appeal “reveals a high degree of similarity between the two”. He urges the Court to take the approach of Powell J in a costs judgment on a previous appeal between the same parties, so that there should be no allowance for submissions. This claim should be for a second case management conference.

[19]      I do not accept there is the overlap between the case management memorandum and the submissions on the substantive appeal as submitted by Mr Boyd. There are two paragraphs in the case management memorandum which foreshadow the submissions made in the appeal. But that is all. Costs for preparing written submissions are allowed but at the 2A band.7

[20]      Finally, Ms Townsend has claimed costs for sealing an order or judgment and associated disbursement. Neither has occurred and both are disallowed.

[21]To conclude, on 2A scale costs, the total sum that can properly be claimed is

$5,975.00.    This  is  less  than  the invoiced amount.    Costs according to scale are appropriate.

Interest

[22]      Ms Townsend’s Schedule A refers to “interest on total costs at 5% per annum”. The amount is said to be $468.55 or $1.28 per day. It is not clear for what period interest is claimed. Mr Boyd submits that interest relates to a regime in the High Court that ended some years ago.

7      This is the same period claimed by Ms Townsend; the correct time for this item in band B is three days rather than one day, as included in her schedule.

[23]      Section 20 of the Interest on Money Claims Act 2016 provides that a court may not award interest under the Act on costs awarded to a party for any period preceding the date the costs are awarded. I cannot award interest on costs for a period prior to this award of costs.8

Orders

[24]      I award costs in the sum  of $5,975.00 in  favour of Ms  Kendrick  against  Mr Boyd.

[25]      I direct the registry to release the sum of $1,195.00, held as security for costs in the Court’s trust account, to Ms Kendrick in part satisfaction of the costs awarded.9

Gordon J

8      See also Harrington v Wilding [2019] NZCA 605 at [47]-[48].

9      The balance of $4,780 is payable by Mr Boyd to Ms Kendrick.

Schedule A 2B Costs

Item	Description	Days	$ at $2,390
11B	Filing memo for first or subsequent case management conference	’ 0.4	956
138 ]	Appearance at first or subsequent case management conference	0.3
30	defendant’s preparation of briefs or affidavits	2.0	$4,780
56A	Preparation ot written submissions	1.0	2,390
29	5ealing order or judgement	0.2	478
Total	3.9	9,321

Plus disbursement - sealing order fee   $50.00 =      $9,371

And interest on total costs at 5% per annum - $468.S5 per annum or $1.28 per day.