IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2017-404-1790
[2018] NZHC 2389
UNDER Section 124 of the District Courts Act 2016 BETWEEN
COLIN GRAEME CRAIG
Appellant
AND
JACQUELINE STIEKEMA
Respondent
Hearing: On the papers Counsel:
J Marcetic and LC Bercovitch for appellant L Clark and HJP Wilson for respondent
Judgment:
11 September 2018
JUDGMENT OF FITZGERALD J
[As to costs of appeal/in District Court]
This judgment was delivered by me on 11 September 2018 at 4 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: Chapman Tripp, Auckland
Kensington Swan, Wellington
Craig v Stiekema [2018] NZHC 2389 [11 September 2018]
Introduction
[1] Mr Craig successfully appealed an interlocutory decision of the District Court striking out his defamation claims against Ms Stiekema. In allowing the appeal, I quashed the District Court decision, including the costs orders, and invited the parties to attempt to resolve costs issues between themselves.
[2] In the event the parties could not reach agreement on costs, they were content for me to deal with both the costs of the appeal and costs in the District Court on the strike out application. I indicated a preliminary view that there did not appear to be any basis to depart from an ordinary scale costs award.1
[3] Mr Craig and Ms Stiekema have been unable to agree and seek a costs determination.
Contentions on costs
[4]Mr Craig seeks scale costs on a 2B basis. With disbursements, a total of
$18,177.80 is sought.2 He argues that as the entirely successful party he is entitled to costs. Mr Craig also raised evidence of settlement offers made to Ms Stiekema which, he says, demonstrate that he has been put to unnecessary expense in pursuing the appeal. It is submitted there are no reasons to the contrary to depart from the presumption Mr Craig should be awarded costs.
[5] Ms Stiekema opposes the application for costs on two grounds. First, she says the figure calculated in memoranda filed for Mr Craig is in error and a correct figure is $17,452.80. Second, she invites the Court to exercise its discretion under r 14.8(1) of the High Court Rules 2016 to reserve costs for determination at the conclusion of the substantive proceedings.
1 Craig v Stiekema [2018] NZHC 838, [2018] NZAR 1003 at [80].
2 In his original memorandum on costs, Mr Craig sought $18,889.90. A subsequent memorandum in reply clarified that $712.00 had been included in error, leaving a figure of $18,177.80.
Further submissions sought
[6] Both parties’ initial submissions on costs proceeded on the basis that r 14.8 applies. That rule provides that costs of interlocutory applications must be determined at the time the interlocutory application itself is determined (and not simply reserved into the substantive proceeding), “unless there are special reasons to the contrary”. In their initial submissions, the parties put forward their arguments why there are such special reasons (as advanced on behalf of Ms Stiekema),…
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CaseChat Overview and Summary
The court decided that costs should not be deferred and should be dealt with at the interlocutory stage. The court considered it conceptually plausible to approach an unsuccessful strike-out application by analogy to a defendant's unsuccessful application for summary judgment, but it was not convinced that this was the appropriate approach. The court agreed with the approach in Deliu v Hong, which supports determining costs as proceedings are decided and revisiting costs at a later date if necessary. The court found that it was not in the interests of justice to reserve costs until the substantive proceedings were finalised. The court disagreed with the factors Ms Stiekema raised for deferring costs, such as the power imbalance between the parties, the age, health, and circumstances of the respondent, the strength of the respondent's case (at trial), and the "success" of the appellant's claim.
The court determined the quantum of costs, adjusting the amount claimed by Mr Craig for errors and disallowing certain costs claimed by Ms Stiekema. The court made an order that costs were to be determined at the interlocutory stage, and Mr Craig was entitled to the $18,177.80 of costs and disbursements in accordance with the costs schedule filed with his first memorandum, as adjusted by his second memorandum.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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