Broederlow v Broederlow

[2023] NZHC 3760

NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B,

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2022-404-002417

[2023] NZHC 3760

BETWEEN

MATSON RONALD BROEDERLOW

Appellant

AND

SHERYLL LYNN BROEDERLOW

First Respondent

BROEDERLOW TRUSTEE (VATL)

LIMITED in its capacity as trustee of the BROEDERLOW SHARES TRUST, BROEDERLOW FAMILY TRUST and BROEDERLOW PROPERTY TRUST

Second Respondent

On the papers

Counsel:

I M Hutcheson for the Appellant

A K McLean & A S Rakena for the First Respondent No appearance for the Second Respondent

Judgment:

18 December 2023

JUDGMENT OF TAHANA J

(Costs)

This judgment was delivered by me on 18 December 2023 at 4.00pm Pursuant to Rule 11.5 of the High Court Rules

Solicitors/Counsel: BAE Legal, Auckland

…………………………

Registrar/Deputy Registrar

Vicki Ammundsen Trust Law Limited Auckland A R Law Ltd, Auckland

BROEDERLOW v BROEDERLOW (Costs) [2023] NZHC 3760 [18 December 2023]

Application for costs

[1]    In my judgment dated 1 August 2023, I dismissed Mr Broederlow’s appeal.1 The first respondent, Ms Broederlow, now seeks costs on a category 2B basis of

$12,106.85.

[2]    Mr Broederlow accepts that costs are payable but says that Ms Broederlow is only entitled to costs of $4,779.45. Further, he agrees that the amount of $597.50 paid as security for costs can be paid in part payment of any costs awarded.

[3]I therefore need to determine the quantum of costs payable to Ms Broederlow.

Relevant law

[4]    The general principles that apply to costs include that they be recovered at the appropriate daily recovery rate:2

(c)costs should be assessed by applying the appropriate daily recovery rate to the time considered reasonable for each step reasonably required in relation to the proceeding or interlocutory application:

(d)an appropriate daily recovery rate should normally be two-thirds of the daily rate considered reasonable in relation to the proceeding or interlocutory application:

[5]    The appropriate daily recovery rate for category 2 proceedings is $2,390.00.3 That rate is set as a broad approximation of two-thirds of the daily rate considered reasonable:4

Rule 14.4 provides that the appropriate daily recovery rates for each category in r 14.3 are those listed in Schedule 2, and that they must be applied to those categories. The rates are set by the Rules Committee, following consultation, to represent a broad approximation of two-thirds of the daily legal fees charged by a New Zealand practitioner of the skill level reflected by each of the categories.

1      Broederlow v Broederlow [2023] NZHC 2019.

2      High Court Rules 2016, r 14.2(1)(c) and (d).

3      High Court Rules 2016, r 14.4 and Schedule 2.

4      David Bullock and Tim Mullins The Law of Costs in New Zealand (LexisNexis, Wellington, 2022) at 2.12.

What is the quantum of costs payable to Ms Broederlow?

[6]    I agree that the proceedings should be categorised as category 2. The appropriate daily rate is therefore $2,390.00 and not $1,593.33 as calculated by counsel for Ms Broederlow.

[7]    Counsel for Mr Broederlow says that Ms Broederlow has claimed for costs to which she is not entitled. This includes costs for appearances that did not take place and costs of memoranda that were prepared by Mr Broederlow’s counsel and then signed by counsel for Ms Broederlow.

[8]    I accept that Ms Broederlow is not entitled to costs for appearances that did not take place. Where directions were made by consent, there is no entitlement to claim for costs of appearances.

[9]    In relation to costs of joint memoranda, I accept that Ms Broederlow is entitled to costs for reviewing and considering issues that result in a joint memorandum. There is clearly time and cost involved in taking those steps for which Ms Broederlow is entitled to recover.

[10]   In relation to the costs of preparing the case on appeal and written submissions, I do not consider that  it  is  reasonable  for  costs  for  both  items  to  be  claimed. Ms Broederlow was the first respondent. There was no common bundle of documents filed on appeal and only two cases were provided in support of Ms Broederlow’s submissions so there does not appear to have been a significant amount of time spent on responding to the case on appeal. Ms Broederlow is entitled to category 2B costs which allocates three days for preparing submissions on appeal. I therefore allow three days for the written submissions but no time for preparation of the case on appeal.

[11]   Ms Broederlow is not entitled to costs for obtaining judgment without appearance as there was clearly an appearance which resulted in the judgment.

[12]I therefore reject Ms Broederlow’s claims for:

(a)preparation for the first case management conference;

(b)appearances at first or subsequent case management conference;

(c)preparation for and appearance at pre-trial conference;

(d)preparation of case on appeal; and

(e)obtaining judgment without appearance.

[13]I therefore award costs on a category 2B basis as follows:

Item	Description	Allocated days	Quantum (daily rate of $2,390)
53	Commencement of response to appeal	0.5	$1,195.00
11	Joint memorandum of counsel dated 10 February 2023	0.4	$956.00
11	Joint memorandum of counsel dated 29 May 2023	0.4	$956.00
56	Preparation of written submissions	3.0	$7,170.00
57	Appearance at hearing for sole or principal counsel	0.5	$1,195.00
TOTAL			$11,472.00

Result

[14]   For the reasons set out above, I award costs of $11,472.00 to Ms Broederlow and order that:

(a)the amount of $597.50 paid as security for costs be paid as part payment of costs; and

(b)Mr Broederlow is to pay the balance of $10,874.50 to Ms Broederlow.

Tahana J