Daisley v Whangarei District Council

[2019] NZHC 156

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2015-488-000109

[2019] NZHC 156

BETWEEN

MALCOLM JAMES DAISLEY

Plaintiff

AND

WHANGAREI DISTRICT COUNCIL

First Defendant

WAYNE WESLEY PETERS

Second Defendant

Hearing:	On the papers
Judgment:	14 February 2019

COSTS JUDGMENT OF HINTON J

This judgment was delivered by me on 14 February 2019 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules

…………………………………………………………………… Registrar/Deputy Registrar

Solicitors:

Tailored Legal Solutions Ltd Heaney & Partners, Auckland Rice Speir, Auckland

DAISLEY v WHANGAREI DISTRICT COUNCIL [2019] NZHC 156 [14 February 2019]

[1]    On 27 August 2018, I issued a judgment dismissing an application for leave to bring a summary judgment application against the first and second defendants. I further ordered that the defendants are entitled to costs against the plaintiff and that they should do what they could to resolve costs issues before filing any submissions.

[2]    It seems that the first defendant and the plaintiff agreed costs on a category 2B basis amounting to $16,459.25, plus disbursements of $1,072.25. Those costs have been the subject of a sealed order issued out of the Whangarei Court.

[3]    On 26 November 2018, counsel for the second defendant advised that they had been unable to resolve costs. They do not agree that costs should be on a scale basis. They say that Mr Daisley has acted very unreasonably vis à vis the second defendant, has brought a “hopeless case” summary judgment application, and persisted with the application in wilful disregard of known facts or clearly established law. They say that Mr Peters has incurred actual costs of $29,126.64 and disbursements of $4,808.36 in respect of the application. They seek an order for recovery of these costs on an indemnity basis.

[4]    Under r 14.6(4) of the High Court Rules 2016, a Court may order a party to pay indemnity costs where the party has acted vexatiously, frivolously, improperly, or unnecessarily, in commencing, continuing or defending a proceeding or a step in a proceeding.

[5]    I do not consider that the plaintiff has acted with any improper purpose or flagrant misconduct. I do, however, consider that the claim for summary judgment against Mr Peters was hopeless for the reasons set out at [40] of my judgment. The claim was that Mr Peters had failed to advise or had advised negligently on actions that could be taken against the Council. But there was not even clear evidence, at least at the summary judgment stage, of the plaintiff having given Mr Peters instructions to provide that advice, or to take action.

[6]I consider the case therefore does fall within r 14.6(4).

[7]    However, I consider the costs claimed by the second defendant, bearing in mind I am only considering the summary judgment application, are unreasonably high. For the same reason that I considered the application for summary judgment against the second defendant to be hopeless, I do not accept that the second defendant needed to incur costs at the level sought in order to defend it. It was fairly readily answered on the face of it, albeit I accept that a party facing summary judgment wishes to be well-prepared. It may well be that some of these costs will be recoverable in the substantive proceeding should the second defendant succeed at that stage, but I do not consider them reasonably incurred in connection with the summary judgment application itself.

[8]    I am also mindful that the greater part of the summary judgment case was run by the first defendant, which is due $16,459.25 costs.

[9]    The scale 2B costs are $9,366.00, as set out in a schedule attached to the second defendant’s memorandum. The plaintiff has made no submission in respect of that calculation and so I take it to be correct. I am prepared to allow an uplift of close to 50 per cent uplift on the scale costs, which brings the total to $14,000.00.

[10]   The second defendant also seeks disbursements of $4,808.36. That includes the cost of an invoice from Wynyard Wood for an opinion provided on 21 June 2018 in the sum of $4,700.38. I have not seen that opinion, but in any event, I do not consider the cost of it would be recoverable on the summary judgment application, again for the reason that I consider the application to have been readily answered without an expert legal opinion. Again, this may be something that can be recovered in the substantive proceeding.

[11]   I therefore order costs in the sum of $14,000.00, plus disbursements of $95.65, being the Court filing fee paid on the notice of opposition to the summary judgment application.

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Hinton J