CMS Trustees Limited v C E v R

NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATON, PLEASE SEE COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2013-485-9326 [2014] NZHC 1905

BETWEEN
CMS TRUSTEES LIMITED

Appellant

AND

C E V R Respondent

Hearing: 18 June 2014

Counsel:

M L Greenhough for Appellant
D G Dewar and C F Rieger for Respondent

Judgment:

13 August 2014

COSTS JUDGMENT OF RONALD YOUNG J

[1] In these proceedings the appellants appealed against the assessment of the Family Court of a costs category assessment of 3C and a 30 per cent uplift of the costs. I dismissed the appeal. The respondent now seeks costs on this appeal.

[2] The parties agreed at a case management hearing that the appropriate category was 2B. The respondent seeks increased costs because the respondent had herself incurred increased costs because she had appointed new counsel who was then unable to complete the hearing (he was appointed a Judge) and current counsel had to appear and get fully up to date on a complex and detailed history that the case
involved.

CMS TRUSTEES LTD v C E V R [2014] NZHC 1905 [13 August 2014]

[3] Secondly, solicitor/client costs are in the region of $15,000, considerably more than costs on a 2B basis.

[4] In my view neither ground is a basis for increased costs. While I appreciate the difficulties current counsel had in coming up to speed with this case at the last moment that is not a basis for increased costs against CMS Trustees Limited.

[5] Secondly, 2B cost appears to work out at $10,029.60. I do not know what the actual costs are – it is said to “exceed $15,000”, but it is not known by how much. Costs of $10,000 would be two thirds of the $15,000 mentioned in the respondent’s submissions which is the desired reimbursement level.

[6] I therefore refuse the application for increased costs. I set costs on a 2B basis

as per the respondent’s memorandum at $10,029.60, including disbursements.

[7] CMS Trustees Limited is now in liquidation. Counsel for the respondent included an application in its costs memorandum for a costs order to be made against the directors of CMS Trustees Limited. Without accepting responsibility the directors of CMS Trustees Limited have agreed to pay the 2B costs awarded. In
those circumstances I do not need to consider the respondent’s application.

Ronald Young J

Solicitors:
D G Dewar, Wellington
M L Greenhough, Wellington

CaseChat Overview and Summary

CMS Trustees Limited appealed against the Family Court's assessment of a costs category of 3C and a 30% uplift of the costs. The respondent sought increased costs because the respondent had incurred additional costs due to appointing new counsel who was then unable to complete the hearing and current counsel had to become fully up to date on the complex history of the case. The respondent argued that the costs incurred were in the region of $15,000, considerably more than costs on a 2B basis. The court considered whether the grounds for increased costs were valid. The court found that the difficulties current counsel had in coming up to speed with the case at the last moment were not a basis for increased costs against CMS Trustees Limited. The court also found that 2B cost appeared to work out at $10,029.60, which was two thirds of the $15,000 mentioned in the respondent's submissions, which was the desired reimbursement level. Therefore, the court refused the application for increased costs and set costs on a 2B basis as per the respondent's memorandum at $10,029.60, including disbursements. The court noted that CMS Trustees Limited was now in liquidation, and the directors of CMS Trustees Limited had agreed to pay the 2B costs awarded without accepting responsibility. As a result, the court did not need to consider the respondent's application for a costs order to be made against the directors of CMS Trustees Limited.

The main legal issue before the court was whether the grounds for increased costs were valid. The court considered whether the difficulties current counsel had in coming up to speed with the case at the last moment and the costs incurred by the respondent were valid grounds for increased costs. The court found that the difficulties current counsel had in coming up to speed with the case at the last moment were not a basis for increased costs against CMS Trustees Limited. The court also found that 2B cost appeared to work out at $10,029.60, which was two thirds of the $15,000 mentioned in the respondent's submissions, which was the desired reimbursement level. Therefore, the court refused the application for increased costs and set costs on a 2B basis as per the respondent's memorandum at $10,029.60, including disbursements. The court also noted that CMS Trustees Limited was now in liquidation, and the directors of CMS Trustees Limited had agreed to pay the 2B costs awarded without accepting responsibility. As a result, the court did not need to consider the respondent's application for a costs order to be made against the directors of CMS Trustees Limited.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Hearing:	18 June 2014
Counsel:	M L Greenhough for Appellant D G Dewar and C F Rieger for Respondent
Judgment:	13 August 2014