Creser v Creser HC Wellington CIV 2009-091-466

[2010] NZHC 2098

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2009-091-466

BETWEEN  RICHARD JOHN CRESER Plaintiff

ANDJANINE MICHELLE CRESER First Defendant

ANDMARION NGAIRE CRESER Second Defendant

Hearing:         On Papers

Counsel:         Plaintiff in Person

First Defendant in Person
J E Hodder and M B Rodriguez Ferrere for Second Defendant

Judgment:      23 November 2010

COSTS JUDGMENT OF RONALD YOUNG J

[1]      In my judgment of 13 October 2010 I struck out Mr Creser’s statement of claim  with  five  causes  of  action  against  the  two  defendants  as  trustees  in Joy Creser’s estate.  As the judgment identifies this is one of a series of judgments arising from litigation by Mr Creser against his two sisters who are trustees of his mother’s estate.

[2]      At the end of my judgment granting the application by the defendants I

invited them and the plaintiff to file submissions on costs.  I have now received those submissions.

RICHARD JOHN CRESER V JANINE MICHELLE CRESER AND ANOR HC WN CIV 2009-091-466  23

November 2010

[3]      Mrs Janine Creser represented herself.  No costs award therefore can be made with respect to her.  The second defendant, Ms Marion Creser, was represented by counsel.  She seeks an order for costs based on 3B plus a 50% uplift for a total costs allowance of $9,791 (including disbursements).

[4]      Mr Creser objects to any order for costs, submitted:

a)        my judgment is subject to appeal; and

b)        a summary of some of his allegations made in his statement of claim. [5]     There is no reason why the second defendant should not have costs.  Their

application was successful.   The fact of an appeal is not in my view grounds to refuse an award of costs.  Should the appeal be successful the costs award can be reversed.  Nor is Mr Creser’s attempt to reargue the merits of his claim a basis to refuse costs.

[6]      To turn to the second defendant’s application for 3B costs and increased costs.  The defendant says that 3B is the appropriate categorisation because of the complexity of the proceeding, the history of the proceedings and the need to involve counsel with special skill and experience.   Scale costs on a 3B basis would be

$6,394.

[7]      I consider that these proceedings are properly on a 2B basis.   I accept that they had some factual complexity which required the bringing together of relevant material.  I record that I am grateful for the way in which the counsel for the second defendant presented this material which did ensure clarity of facts.   However the legal issues were not especially difficult or obscure and essentially the decision was based on an analysis of the facts.

[8]      I am however prepared to uplift the 2B costs by a factor of 50%.  Increased costs may be ordered whether the party paying costs has contributed unnecessarily to the time or expense of the proceeding or a step in the proceeding or has taken or pursued an unnecessary step or argument that lacked merit (see HCR 14.6).

[9]      In this case the time taken was unnecessarily increased by virtue of the plaintiff representing himself.  As a result significant effort had to be made to keep the case on track and focused on the issues.

[10]     Secondly, in my substantive judgment I concluded these proceedings were a copy of a previous set of proceedings where the plaintiff had failed.  I agree with the second defendant that the plaintiff was unjustified in commencing these proceedings. Those circumstances justify a 50% uplift from the 2B categorisation.

[11]     A memorandum as to costs should be presented to the Registrar accordingly.

Solicitors:

J Creser, 4 Rothwell Street, Titahi Bay 5022, email:  [email protected]

J M Creser, C/- Post Office, Kohu Kohu, Northland

Ronald Young J

J E Hodder, Chapman Tripp, PO Box 993, Wellington, email: jack[email protected]

M B Rodriguez Ferrere, Chapman Tripp, PO Box 993, Wellington

email:  [email protected]