Chang-Hooker v Rooke

[2013] NZHC 1677

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2011-404-006074 [2013] NZHC 1677

BETWEEN  SANDY CHANG-HOOKER Appellant

ANDDAVID JOHN ROOKE Respondent

Hearing:                   (On the papers) Counsel: Appellant in Person

T C Wu for the Respondent

Judgment:                22 July 2013

[COSTS] JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie on 22 July 2013 at 11.30 am

Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

CHANG-HOOKER v ROOKE [2013] NZHC 1677 [22 July 2013]

[1]      I refer to my oral judgment dated 31 May 2013.

[2]      In that judgment, I awarded costs in favour of the respondent, Mr Rooke, and invited the parties to file memoranda.

[3]      I have now received those memoranda.

[4]      Mr Rooke seeks costs calculated on a 2B basis, together with a 25 percent uplift.  He advises that costs calculated on a 2B basis come to $5,572.00.  He also seeks disbursements of $53.50.

[5]      Ms  Chang-Hooker  opposes  any  award  of  costs.     She  deals  with  the background  to  her  recall  application,  and  makes  various  comments  on  my oral judgment.  She submits that some matters are still under dispute, and that they were not resolved by me.  She argues that Mr Rooke was, in effect, self represented, and that he breached r 11.11 of the High Court Rules, and that subsequent judgments in this Court have been based on erroneous findings of fact.  In particular, she refers to a judgment given by Brewer J and a judgment given by Goddard J.  She argues that the Legal Complaints Review Office still has to deal with the matter, and submits that Mr Rooke should not be awarded any costs until it does so.  She opposes any award of increased costs against her, and argues that Mr Rooke has wasted Court time.  Indeed, she seeks penalty costs against him in this regard.  She alleges that his schedule of costs is dishonest, and exaggerated, and that Mr Rooke has consistently demonstrated animosity towards her.   In that regard, she refers to the service of proceedings on her by a Mr Kumar on Sunday, 26 May 2013.

Analysis

[6]      All matters in relation to costs are in the discretion of the Court, but costs generally proceed in accordance with settled principles, and the relevant rules of Court.

[7]      Rule 14.2(a) provides that, as a general rule, a party who fails with respect to a proceeding, or interlocutory application, should pay the costs to the party who succeeds.

[8]      In the present case, Ms Chang-Hooker failed in her application to recall my judgment issued on 6 March 2013.

[9]      I do not accept Ms Chang-Hooker’s argument that Mr Rooke was self represented.  Mr Rooke appeared through counsel Mr Wu.     Mr Wu was a salaried solicitor employed by Mr Rooke.  He had an assigned hourly rate which he charged clients for his work.  Mr Rooke has not been invoiced by Mr Wu, but he was obliged to pay his salary, and Mr Wu has been required to expend time in resisting the recall application which could otherwise have been charged to private clients.  There is no jurisdictional bar to a solicitor being awarded costs in such circumstances and a

solicitor is not in the same position as a lay litigant.[1]

[1] Bell Gully Buddle Weir v  Finlay  HC Wellington, CP916/91, 6  May 1992 at  20;  and  see, Henderson Borough Council v Auckland Regional Authority [1982] 2 NZLR 751 (HC) (in-house counsel); Malkinson v Trim [2002] EWCA Civ1273 at [16].

[10]     Mr Rooke is entitled to a costs award.  There is no reason to depart from the general rule.

[11]     Costs are generally fixed by reference to  the schedules  contained  in the

High Court Rules — r 14.2(c).

[12]     Here, Mr Rooke suggested they should be fixed on a 2B basis.   I agree. Category 2 proceedings are proceedings of average complexity, requiring counsel of skill and experience considered average in the High Court.   The recall application fell into that category.   Band  B is  appropriate for proceedings where a normal amount of time is considered reasonable.  Again, the present proceedings fall into that band.

[13]     I have perused the schedule attached to Mr Rooke’s memorandum.   It has been prepared in accordance with Schedule 3 to the High Court Rules.  The steps claimed were taken, and the time claimed for each step corresponds with the time allocation set out in the rules.   The appropriate daily recovery rate for category 2

proceedings is $1,990 per day.  It follows that the appropriate costs claim, is $5,572.

[14]     I am not inclined to allow disbursements.  The disbursements claimed relate to travel and parking costs.  In my view, it is not appropriate to allow recovery of disbursements of this nature — indeed, I doubt that they come within the definition in r 14.12(1).  Moreover, no invoices have been provided.

[15]     Under r 14.6, the Court can award either increased costs, or indemnity costs in certain circumstances.  Those circumstances are set out in rr 14.6(3) and 14.6(4) respectively.

[16]     Here, Mr Rooke claims increased costs under r 14.6(3).   He argues that Ms Chang-Hooker failed to comply with an unless order issued by the Court, despite it being discussed and explained to her. That is the case, but it is not relevant to costs on the recall application.  The application for recall was brought in a timely fashion, and there was no breach of any Court orders by Ms Chang-Hooker in regard to it.

[17]     Mr Rooke is on stronger ground when he asserts that the bringing of the application  was  an  unnecessary step,  and  that  it  lacked  merit.   At  the hearing, Ms Chang-Hooker’s submissions were poorly focussed.  She endeavoured to put all of her complaints in issue, and to reopen matters which had already been decided. There was no endeavour to focus on the rules or law which govern the circumstances in which a judgment can be recalled.  This was despite various warnings I gave her, namely that she should keep on track, and that the sole issue was whether or not it was open for me to recall my judgment.

[18]     There is nothing to suggest that Mr Rooke was put to any additional cost as a result of Ms Chang-Hooker’s behaviour at the hearing.   The hearing was not appreciably prolonged as a result.  In my view, an award of increased costs in this case is not appropriate.

[19]     Accordingly, I award costs in favour of Mr Rooke, and against Ms Chang- Hooker, of $5,572.00.  I do not award disbursements in favour of Mr Rooke.

Wylie J