Cameron v Van Dijk

[2020] NZHC 2271

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2020-409-121

[2020] NZHC 2271

BETWEEN

JANET HEATHER CAMERON

Plaintiff

AND

LEO VAN DIJK

Defendant

Hearing:	On the papers
Counsel:	J M Appleyard and M J Claughton for Plaintiff S P Maloney for Defendant
Judgment:	2 September 2020

JUDGMENT OF ASSOCIATE JUDGE LESTER

This judgment was delivered by me on 2 September 2020 at 12.00pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar 2 September 2020

CAMERON v VAN DIJK [2020] NZHC 2271 [2 September 2020]

[1]The plaintiff, Ms Cameron, obtained judgment against the defendant,

Mr Van Dijk, on 14 August 2020 following a hearing on 11 August 2020.1

[2]        Ms Cameron seeks costs on a 2B basis in respect of her summary judgment application and an application for substituted service. Mr Van Dijk does not dispute the reasonableness of costs on a 2B basis in respect of the application for substituted service.  Nor,  is  there  a  challenge  to  the  claim  for  disbursements.   However, Mr Van Dijk submits that the correct costs category for the balance of the proceedings is 1A.

[3]I do not accept that submission.

[4]        A not insubstantial amount was in issue in the proceeding. The judgment obtained by Ms Cameron required Mr Van Dijk to pay $1,000,000 into court by way of a security bond pending the release of guarantees provided by Ms Cameron.

[5]        While Mr Van Dijk submits, “[t]he issues in this proceeding were extraordinarily straightforward”, that did not stop Mr Van Dijk filing an affidavit which, including exhibits, ran to nearly 100 pages, together with a statement of defence.

[6]        Mr Van Dijk in his costs submissions says Ms Cameron’s claim revolved around a single clause in the agreement and that no difficult legal issues were involved. However, the papers in opposition hinted at issues arising in relation to other matters. For example, the statement of defence refers to a breach of director’s duties. The notice of opposition referred to listed as a  ground of opposition as appearing in     the affidavit filed in support of the opposition, meaning Ms Cameron’s counsel had to scrutinise the affidavit for possible arguments.

[7]        I accept the submission of Ms Appleyard, that the Court will normally award costs on a 2B basis unless persuaded otherwise and that 2B costs “should be expected, and are the most frequent, in the ordinary run of cases”.2

1      Cameron v Van Dijk [2020] NZHC 2061.

2      Rachael Schmid-McCleave “Costs” in Blanchard (ed) Civil Remedies in New Zealand (online ed, Thomson Reuters) at [51.21.2.7].

[8]        Mr Van Dijk points to the brevity of some of the papers filed by Ms Cameron. Brevity can, at times, be a hallmark of time spent honing in on and bringing focus to documents rather than an indicator that a matter was straightforward.

[9]        The reality is Mr Van Dijk defended this case to buy time. Ms Cameron was hoping the guarantee would be released by the lender prior to the hearing. So much was apparent from the brevity of the written submissions presented in opposition for the hearing (for which only a quarter day is claimed) and the very limited oral submissions  presented.  Even   if  costs   on  a 1A  basis  had  been   appropriate,   Mr Van Dijk’s position in running, in effect, an unmeritorious defence, would have warranted an uplift.

[10]      In all the circumstances, I am satisfied that costs on a 2B basis are appropriate and so order. The Schedule of costs and disbursements annexed to the plaintiff’s costs memorandum is approved.

Associate Judge Lester

Solicitors:

Chapman Tripp, Christchurch Sandi Anderson, Auckland

Copy to counsel:
S P Maloney, Barrister, E St John, Auckland