Collins v Mikitasov HC Wha CIV 2007-488-000330

[2008] NZHC 2410

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV 2007-488-000330

UNDER  the Declaratory Judgments Act 1908

BETWEEN  BERNARD JOHN COLLINS Plaintiff

ANDIGOR ALEXANDROVICH MIKITASOV Defendant

CIV 2007-488-000816

IN THE MATTER OF     The Land Transfer Act 1952 s145A and Caveat 7627994.1 registered against Computer Register 113828

BETWEEN  IGOR ALEXANDROVICH MIKITASOV Applicant

ANDBERNARD JOHN COLLINS Respondent

Counsel:         R C Mark for B J Collins

D R James for I A Mikitasov

Judgment:      16 July 2008 at 2:30pm

JUDGMENT OF ASSOCIATE JUDGE ROBINSON [on application for costs]

This judgment was delivered by me on 16 July 2008 at 2:30pm, pursuant to Rule 540(4) of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Palmer Macauley, PO Box 576, Kerikeri

R Mark, PO Box 172, Kerikeri

COLLINS V  MIKITASOV HC WHA CIV 2007-488-000330  16 July 2008

[1]      On the making of Orders discharging a Caveat lodged by Mr Mikitasov and granting applications for declaration and injunction by way of Summary Judgment in favour of Mr Collins I made a direction requiring Mr Mikitasov to pay Mr Collins’ costs on a 2B basis with disbursements as fixed by the Registrar.

[2]      Pursuant to that direction Mr Collins seeks costs which include extra costs for a second counsel.  Mr Collins also seeks costs for a hearing lasting three-quarters of a day.

[3]      An application was made by Mr Mikitasov for an order staying execution of the order discharging the caveat pending an appeal.  That application was dismissed. Mr Collins seeks costs in respect of that Application.

[4]      It is submitted on behalf of Mr Mikitasov that second counsel should not be certified and that costs of the hearing should be limited to half a day.

[5]      Both the application for summary judgment and application for discharge of the caveat were heard at the same time.  There were common issues of fact and law in connection with both applications.  The hearing in fact took three quarters of the day.  Consequently I am prepared to allow costs on a hearing of that duration.

[6]      At the hearing Mr Mark was assisted by Mr H Waalkens  QC  as  senior counsel.  As pointed in out in Nomoi Holdings v Elders Pastoral Holdings 15 PRNZ

155 at 159

It will be a rare category one case where the court will certify for second counsel.  It will be a rare category three case where the court will not certify for second counsel.  It is difficult, however, to lay down a general rule for category two cases.  They are the norm.  The category spans a wide range of proceedings.  I am of the view that past practice as to when second counsel should be certified is no longer a guide as to when certification should be given under the new costs regime.   That is because the new costs regime must not be seen in isolation but rather must be interpreted in the overall context of how civil proceedings are now tried in this court.

Amongst the factors referred to in the case of Nomoi Holdings were the emphasis now placed on pre-trial preparation, the fact a common bundle of documents is provided,

and the fact that written statements containing the evidence in chief is always exchanged well in advance of the trial.   As pointed out in Nomoi Holdings such preparation work reduces the stress at trial.  In Nomoi Holdings at [18] Chambers J states

Second counsel used to perform a vital role during trial.  They were often busy  briefing  witnesses  yet  to  give  evidence,  reading  evidence  from witnesses while their leaders concentrated on other witnesses yet to come, assembling  documents  to  be  proved  and  produced.    Keeping  track  of exhibits, preparing cross examinations for their leaders, and desperately researching  the  law  in  the  light  of  the  evidence  as  it  tumbled  out  of witnesses’ mouths and the other sides in court submissions.

As a consequence Chambers J concluded quite properly that the circumstances in which second counsel were to be certified in category two cases will be fewer than was the case before 1990.

[7]      In the present case where there was no viva voce evidence, where prior notice was given of the arguments to be advanced in opposition to Mr Collins’ case, and where the hearing was in the main conducted by only one counsel on behalf of the Mr Collins I can see no justification for the certification of a second counsel.

[8]      Accordingly the  schedule  of  costs  prepared  by counsel  on  behalf  of  Mr Collins is approved but on the basis that there is not certification for a second counsel.  I also confirm a hearing for three-quarters of a day.

[9]      No order for costs has been made in connection with the application for stay pending appeal.  As the appeal is pending I do not consider it appropriate to make any order for costs in respect of that application at this stage.  However I indicate that if the appeal is dismissed then subject to any submissions that might be made on behalf of Mr  Mikitasov,  Mr  Collins  would  be  entitled  to  his  costs  on  the  stay

proceedings on a schedule 2B basis.

M D Robinson

Associate Judge