Buchanan Construction Limited v Watson

[2020] NZHC 1537

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-01457

[2020] NZHC 1537

BETWEEN

BUCHANAN CONSTRUCTION LIMITED

Appellant

AND

CHRISTINE WATSON

Respondent

On the papers
Judgment:	2 July 2020

JUDGMENT OF HINTON J

[Re Costs on Abandonment of Appeal]

This judgment was delivered by me on 2 July 2020 at 10:30 am pursuant to Rule 11.5 of the High Court Rules

…………………………………………………………………… Registrar/Deputy Registrar

Solicitors/Counsel:
Corban Revell, Auckland

BUCHANAN CONSTRUCTION LTD v WATSON [2020] NZHC 1537 [2 July 2020]

[1]                 The question of costs following the appellant’s abandonment of its appeal to this Court from the District Court was referred to me as Duty Judge.

[2]                 On 13 March 2018, following a hearing on 22 February 2018, Judge AA Sinclair, sitting in the District Court at Auckland, dismissed the appellant building company’s claim in respect of non-payment of invoices against the respondent, Ms Watson, who self-represented in that Court. No award of costs or disbursements was made. It is unclear whether the matter was determined or, more likely, overlooked.

[3]                 The appellant’s last day to file an appeal in this Court was 12 April 2018. It did not do so until 11 July 2018. On 28 March 2019, over the respondent’s opposition, Gordon J granted the appellant leave to appeal out of time. The Judge made no order as to costs on that application.

[4]                 On 7 November 2019, the appellant advised the Court and the respondent that it was abandoning its appeal, which was by then to be heard on 21 November 2019, having been set down on 1 July 2019.

[5]                 Ms Watson, who also self-represented in this Court, claims disbursements in the amount of $3,022.95, being the filing fee of $110 she paid in respect of her notice of opposition to the appellant’s application for leave to appeal out of time and

$2,912.95 she paid to a law firm for advice that, she says “provided me with assurance that [the appellant’s] payment claim was wrong and that if I evidenced the truth I would be ok self representing during the hearings.”

[6]                 Counsel for the appellant, Mr Orton, opposes any award of costs or disbursements, saying Ms Watson effectively seeks the payment of costs on a solicitor/client basis; that as a self-represented litigant she has no entitlement to an award of costs; and that the invoices relate to attendances for the District Court hearing, not the proceeding in this Court. He also says in respect of the claimed filing fee disbursement that the appellant succeeded in its application for leave and should not be made to pay out a disbursement in respect of Ms Watson’s failed opposition on that issue.

[7]                 Mr Orton is correct that lay litigants cannot obtain an award of costs,1 but they are entitled to “reasonable disbursements” in the discretion of the Court, and the Court should apply a “reasonably liberal approach.”2 Disbursements can be awarded under this head for sums paid by a lay litigant to a solicitor for help in preparing to appear and argue the case in person.3 It is incorrect to say this amounts to an award of costs on a solicitor/client basis.

[8]                 However, to be recoverable, a disbursement must be an expense paid or incurred for purposes of the proceeding in the Court from which the order is sought. Having reviewed the invoices Ms Watson submitted in support of her claim, and by reference to her own description of the advice she received, the amounts claimed in respect of lawyer’s fees clearly relate to the District Court hearing. No award in respect of these amounts is recoverable by Ms Watson in this Court. This would be a matter she would have to raise in the District Court, assuming the question of costs and disbursements in that Court has not already been determined.

[9]                 For now, Ms Watson is entitled to recover the filing fee she paid. While the appellant did succeed on the grant of leave, the merits of that grant of leave would always have become subsumed in the disposition of the substantive appeal (thus, I infer, Gordon J’s making no order as to costs at that time). Following the appellant’s subsequent abandonment of its appeal, it is appropriate that the respondent recover any disbursements she has incurred in respect of it, any expenditure by her having been unnecessary and wasted.

[10]I award the respondent disbursements of $110.

Hinton J

1      McGuire v Secretary for Justice [2018] NZSC 116, [2019] 1 NZLR 335.

2      Re Collier (A Bankrupt) [1996] 2 NZLR 438 (CA) at 441-442.

3      Knight v Veterinary Council of New Zealand HC Wellington CIV-2007-485-1300, 31 July 2009 at [6], as cited in McGuire, above n 1, at [55] fn 42.