Chamberlain v Scott

[2013] NZHC 2231

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CIV 2011-412-842 [2013] NZHC 2231

BETWEEN  FATHER MARK CHAMBERLAIN Appellant

ANDSUSAN HONOR SCOTT Respondent

ANDTRUSTEES EXECUTORS LIMITED AND NAYLOR LOVE CONSTRUCTION LIMITED

Second Parties

Hearing:                   29 August 2013 (On the papers)

Counsel:                  P Cavanagh QC for Appellant

T Shiels for Respondent

Judgment:                29 August 2013

JUDGMENT OF FOGARTY J

Introduction

[1]      By judgment of 5 October 2012, the Court refused to find a special reason for admitting new evidence as to whether or not an Italian altar was a fixture or a chattel. The Environment Court became seized of the matter and decided that the altar was sufficiently attached to the building so as to be a fixture.

[2]      On an appeal limited to a question of law the argument was that that was an error of law.  The appellant sought to adduce new evidence, demonstrating by using state-of-the-art digital radar that there was a void under the table of the altar which had been filled with concrete blocks, and that the altar was just standing on the floor,

but was not annexed to it, save for a light skim of levelling mortar.

CHAMBERLAIN v SCOTT [2013] NZHC 2231 [29 August 2013]

[3]      The Court’s judgment of 5 October 2012 effectively resolved the appeal by refusing to allow this evidence to be admitted, as there were no special reasons to do so, to contradict the policy of the statute that there would be only one hearing or trial on the facts. After the decision was released, the appeal itself was abandoned.

[4]      The parties do not agree on costs.   Counsel agree in general that scale 2B costs are payable by the appellant.  The issue is confined to the question of whether or not category C should be applied to the preparation of written submissions as to the admissibility of new evidence.

[5]      Mr  Shiels  seeks  three  days.    Mr  Shiels  argues  that  his  actual  costs  for preparation of the argument were $6,650 or 19 hours work.  The authorities of the Court of Appeal do not allow that fact to be taken into account at all.  I disregard it. I agree, however, with the submission that preparation of the argument required careful attention to the affidavits filed in support of admission of the new evidence. It was necessary to understand the new evidence.  It was reasonable for Mr Shiels to consult with his own expert in that regard.   In the circumstances, I agree that an allocation of one and a half days on a B basis did not reflect adequately the time that a practitioner should be expected to prepare.  The question of admission of the new evidence was a difficult one in this case.  There is no doubt as to the quality of the new evidence, and very little doubt that, if admitted, it would result in a reversal of the Environment Court’s decision.   It therefore required careful attention to preparation and, as I have indicated, against a context in which counsel knew that it was likely to resolve the appeal one way or the other.   The preparation had to be made in the context of other decided cases.  Having decided that one and a half days was clearly inadequate, I think it is correct to go to category C, as argued for by Mr Shiels. This category provides for three days.

[6]      There was one more issue dividing the parties.  Mr Shiels has sought $796, equivalent to 0.4 time allocation, equivalent to memorandum for a mentions hearing. These relate to attendances on 26 March 2012 and 8 May 2012, and memorandum detailing the costs application.

[7]      I do not regularly allow costs on disputed costs applications.  Partly, this is to incentivise parties to settle costs.   These costs are not allowed.   Removing $796 reduces the figure claimed by the respondent to the sum of $12,106.50.  That sum is award to the respondent.  Otherwise, costs lie as they fall.

Solicitors:

Farry & Co Dunedin

Trustees Executors, Dunedin

Gallaway Cook Allan, Dunedin

Hope & Associates, Oamaru