Cornelius v Public Trustee
[2013] NZHC 2251
•2 September 2013
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CIV-2010-419-1100 [2013] NZHC 2251
BETWEEN DOUGLAS NOEL CORNELIUS Plaintiff AND
THE PUBLIC TRUSTEE as Executor of the Estate of JOANNE ELIZABETH CORNELIUS
Defendant
On the Papers Counsel:
Plaintiff in person
RH Hill for DefendantJudgment:
2 September 2013
JUDGMENT OF TOOGOOD J [Costs Judgment on interlocutory matters]
This judgment was delivered by me on 2 September 2013 at 4:30 pm
Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
CORNELIUS v THE PUBLIC TRUSTEE [2013] NZHC 2251 [2 September 2013]
[1] The parties to this proceeding agreed on terms of settlement at a judicial settlement conference conducted in March 2011. The formal settlement documents were completed on 19 December 2012 recording the arrangement to settle by way of a subdivision, it being the plaintiff’s responsibility to implement the arrangements.
[2] Adverse comments were made about the delay in progress by Katz J on
17 October 2012 and by Priestley J on 14 November 2012.
[3] The defendant takes the position that allowing two years from the date of the settlement conference was a more than reasonable allowance of time to enable the plaintiff to undertake not only the necessary conveyancing but also to attend to the other practical steps which had to be taken in order to have the subdivision approved. Accordingly, the defendant seeks an order for costs in respect of subsequent telephone conferences conducted on 16 May 2013 (Katz J), 26 June 2013 (Brewer J),
7 August 2013 (Toogood J), and a further telephone conference held this morning,
30 August 2013.
[4] Another telephone conference has been scheduled for the week of
7 October 2013, but Mr Hill has indicated that he is satisfied that the plaintiff has at last taken the necessary steps to have a new Certificate of Title issued and that the matter is now in the hands of the Registrar of Lands.
[5] Mr Hill seeks a total sum of $6,000, being $1,500 in costs in respect of each conference. He submits the time involved in each conference itself does not adequately reflect the additional time incurred by the defendant for the need to receive advice, instruct counsel and prepare affidavits and memoranda.
[6] Mr Hill also submits that given the plaintiff ’s claims of impecuniosity, the Court should order that any costs award should be secured by a charge over the land to which Mr Cornelius will have title once the subdivision is complete. He has also asked that expenses or compensation under the lease, which is to be surrendered in the settlement, should be included in that charge.
[7] Mr Cornelius opposes any order, arguing that implementation of the terms of settlement has been delayed because of well-documented difficulties involving the necessary action of third parties and he points out that it has been as much in his interests as in the interests of the defendant to give effect to the agreed terms.
[8] Mr Cornelius opposes the imposition of any charge and says that a claim for compensation or expenses relating to the lease is inconsistent with the terms of the Deed of Surrender of Lease sent to him by the defendant as part of the settlement documents.
Discussion and decision
[9] The costs awarded for interlocutory matters not specifically referred to in Schedule 3 of the High Court Rules (time allocations) should be assessed so far as is relevant by reference to similar matters which are specified. I consider that the appropriate approach is to categorise the steps taken since the judicial settlement conference, for costs purposes, in accordance with r 14.3(1) of the High Court Rules and to make a determination of reasonable time in accordance with r 14.5(2).
[10] The steps taken since the judicial settlement conference, particularly in respect of the telephone conferences for which costs are now claimed, should be assessed on a Category 1B basis, meaning that the daily rate under Schedule 2 would be $1,320. Where memoranda are required the time allocation will be 0.4 days and appearances are appropriately assessed on the analogous basis of item 13 in Schedule 3 (appearance at first or subsequent case management conference) at 0.3 days.
[11] Under the terms of settlement, Mr Cornelius undertook to complete the settlement terms in accordance with, among other things, a timetable directed by Priestley J in a Minute dated 14 November 2012 (although the written terms of settlement incorrectly record at paragraph [9] that the directions were given on
14 September 2012).
[12] While I am not sufficiently informed as to where the responsibility for continued delays should fall as between Mr Cornelius and third parties, I am satisfied that the defendant has been put to expense by delays for which the defendant bears no responsibility. Whether or not he has personally been entirely at fault, Mr Cornelius accepted the responsibility for implementation when his claims were resolved and the costs resulting from a delay of now well over two years should not be borne entirely by the defendant.
[13] I do not consider, however, that it is appropriate for the Court to secure any costs award by the granting of a charge over the land, if it had jurisdiction to do so, and the Court certainly has no jurisdiction to make any orders in respect of compensation under the lease.
[14] Using the rules referred to at [9] and [10] above as a guide, and it appearing that it was only in respect of the latest telephone conference that the defendant was required to prepare and file memoranda and an affidavit, I calculate the defendant’s entitlement, on the basis of four telephone conferences and one allowance for
preparation of documents, as follows:
16 May 2013 Telephone conference $396.00 26 June 2013 Telephone conference $396.00 7 August 2013 Telephone conference $396.00 30 August 2013 Preparation $528.00 30 August 2013 Telephone conference $396.00 $2,112.00
[15] The plaintiff shall pay to the defendant costs on all interlocutory matters to date in the sum of $2,112.00.
.........................................
Toogood J
0
0
1