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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Chang-Hooker v Rooke

Details

AGLC: Chang-Hooker v Rooke [2013] NZHC 1677
Case: [2013] NZHC 1677
Decision Date: 22 July 2013

CaseChat Overview and Summary

In the case of Chang-Hooker v Rooke, the High Court of New Zealand dealt with a matter concerning the awarding of costs following an unsuccessful application to recall a previous judgment. The appellant, Sandy Chang-Hooker, had filed an application to recall a judgment issued by Justice Wylie on 6 March 2013, which was subsequently denied. The respondent, David John Rooke, sought costs under the High Court Rules, claiming a total of $5,572.00, calculated on a 2B basis, and an additional 25 percent uplift. Ms Chang-Hooker opposed the award of costs, arguing that some matters were still under dispute and that Mr Rooke had acted improperly. The central legal issue before the court was whether the respondent was entitled to costs, and if so, the appropriate amount and whether any increased costs should be awarded.

Justice Wylie began by noting that all matters concerning costs are within the Court's discretion but generally follow established principles and relevant rules. Rule 14.2(a) of the High Court Rules provides that a party who fails in a proceeding should generally pay the costs of the successful party. The court determined that Mr Rooke was not self-represented but was instead represented by counsel, Mr Wu, who was a salaried solicitor. This distinction meant that Mr Rooke was entitled to a costs award. The court further found that the recall application fell into category 2, of average complexity, and that the time claimed by Mr Rooke corresponded with the time allocation set out in the rules. Consequently, the court agreed with Mr Rooke's suggestion that costs should be fixed on a 2B basis, amounting to $5,572. However, the court declined to award disbursements, considering them inappropriate and not within the definition of recoverable disbursements.

Regarding the request for increased costs, the court acknowledged that the application for recall was unnecessary and lacked merit. However, it found that Ms Chang-Hooker’s conduct during the hearing did not cause any additional costs to Mr Rooke, nor did it significantly prolong the hearing. Therefore, the court concluded that an award of increased costs was not appropriate. Ultimately, Justice Wylie awarded costs of $5,572.00 in favor of Mr Rooke but did not award any disbursements.

Orders