Clayton v Currie - [2017] NZHC 1898

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2011-409-1178 [2017] NZHC 1898

IN THE MATTER
of the New Zealand Bill of Rights Act

1990

BETWEEN

VINCENT JAMES CLAYTON First Plaintiff

LINDA JOYCE WESTBURY Second Plaintiff

AND

PHILIPPA ANNE CURRIE First Defendant

RAYMOND DONNELLY & CO Second Defendant

CROWN SOLICITOR AT CHRISTCHURCH

Third Defendant

ATTORNEY-GENERAL OF NEW ZEALAND

Fourth Defendant

CIV-2013-409-1441

IN THE MATTER of the New Zealand Bill of Rights Act
1990

BETWEEN PETER LLOYD MACHIRUS First Plaintiff

NADIA MAVANA PELENATO Second Plaintiff

GARY GEORGE MORELL Third Plaintiff

… continued

VINCENT JAMES CLAYTON v PHILIPPA CURRIE [2017] NZHC 1898 [10 August 2017]

ANDPHILIPPA ANNE CURRIE First Defendant

RAYMOND DONNELLY & CO Second Defendant

CROWN SOLICITOR AT CHRISTCHURCH
Third Defendant

ATTORNEY-GENERAL OF NEW ZEALAND
Fourth Defendant

On the papers

Counsel:

P N Allan for Mr Clayton and Ms Westbury
R W Maze for Mr Machirus, Ms Pelenato and Mr Morrell

J C Pike QC and S K Barr for Ms Currie, Raymond Donnelly and Co, Crown Solicitor at Christchurch and Attorney-General S M Kinsler and S K Shaw for Commissioner of Police (1178) R E Schmidt-McCleave for Legal Complaints Review Officer (1178)

Judgment:

10 August 2017

JUDGMENT OF THOMAS J

Introduction

[1] By my decision dated 15 June 2017:1

(a) the defendants’ application for summary judgment was dismissed;

(b) the defendants’ application for security for costs was dismissed;

(c) the Clayton/Westbury application for further discovery was dismissed;

and

1 Clayton v Currie [2017] NZHC 1302.

(d)the Clayton/Westbury application for non-party discovery was dismissed.

[2] The Machirus application for interrogatories was withdrawn.

[3] In my judgment, I observed there would seem no reason why costs on a 2B basis should not follow the event in respect of each application, save as against Ms Westbury, who is legally aided. This decision now addresses the various memoranda filed by the parties and non-parties for costs.

[4] The analysis is undertaken in light of the High Court Rules 2016. Costs are discretionary.2 The principles applying to the determination of costs are:

14.2 Principles applying to determination of costs

The following general principles apply to the determination of costs:

(a) the party who fails with respect to a proceeding or an interlocutory application should pay costs to the party who succeeds:

(b) an award of costs should reflect the complexity and significance of the proceeding:

(c) costs should be assessed by applying the appropriate daily recovery rate to the time considered reasonable for each step reasonably required in relation to the proceeding or interlocutory application:

(d) an appropriate daily recovery rate should normally be two-thirds of the daily rate considered reasonable in relation to the proceeding or interlocutory application:

(e) what is an appropriate daily recovery rate and what is a reasonable time should not depend on the skill or experience of the solicitor or counsel involved or on the time actually spent by the solicitor or counsel involved or on the costs actually incurred by the party claiming costs:

(f) an award of…

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 Clayton v Currie

Details

AGLC: Clayton v Currie [2017] NZHC 1898
Case: [2017] NZHC 1898
Decision Date: 10 August 2017

CaseChat Overview and Summary

In Clayton v Currie, the High Court of New Zealand assessed costs for two separate proceedings. The first proceeding involved Vincent James Clayton and Linda Joyce Westbury as plaintiffs against Philippa Anne Currie, Raymond Donnelly & Co, and others as defendants. The second proceeding involved Peter Lloyd Machirus, Nadia Mavua Pelenato, and Gary George Morell as plaintiffs against similar defendants. The court was tasked with determining the allocation of costs between the parties following various applications, including applications for summary judgment, security for costs, and discovery.

The court considered several legal issues, including the principles governing the determination of costs under the High Court Rules 2016, the implications of joint and several liability, and the circumstances under which costs may be apportioned differently among parties. Notably, the court had to decide whether to uphold the presumption of joint and several liability when one party was legally aided, and whether unsuccessful parties should bear the costs of irrelevant or unreasonable applications.

The court found that the defendants were liable to pay Mr. Clayton $1,283.58 for costs related to the successful applications against summary judgment and security for costs. However, Mr. Clayton was held jointly and severally liable for costs incurred by the Commissioner for Police and the Legal Complaints Review Officer, amounting to $7,828.91 and $7,300.65 respectively, less the cost of air travel incurred due to the abandonment of a hearing. In the second proceeding, the defendants were ordered to pay the plaintiffs $4,359.71, while the plaintiffs were held responsible for the wasted costs of $483.47 and $366 incurred by the Commissioner for Police and the Legal Complaints Review Officer respectively.

In summary, the court's decision provided a detailed analysis of the costs incurred in both sets of proceedings, applying the principles of cost allocation under the High Court Rules and considering the specific circumstances of each case. The final orders reflected the court's determination of who should bear the costs for each application and proceeding.

Orders