Craig v Stiekema - [2018] NZHC 2389

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),…

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 Craig v Stiekema

Details

AGLC: Craig v Stiekema [2018] NZHC 2389
Case: [2018] NZHC 2389
Decision Date: 11 September 2018

CaseChat Overview and Summary

The High Court of New Zealand, Auckland Registry, dealt with an appeal by Mr Craig against an interlocutory decision of the District Court that struck out his defamation claims against Ms Stiekema. The legal issues before the court were whether costs should be deferred until the conclusion of the substantive proceedings or decided at the interlocutory stage. Mr Craig sought scale costs on a 2B basis, while Ms Stiekema opposed the application for costs on two grounds. The court invited further submissions clarifying the parties' positions on costs under the relevant rules.

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