De Alwis v Chean HC Auckland CIV 2007-404-5357

[2010] NZHC 1038

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2007-404-005357

BETWEEN	HERALD VICTOR DE ALWIS First Plaintiff
AND	MARGARET ELIZABETH DE ALWIS AND HERALD VICTOR DE ALWIS Second Plaintiffs
AND	JOHN WAH KUM Third Plaintiff
AND	CONNIE FAY LING KUM Fourth Plaintiff
AND	MARSHA ADRIENNE TAI PING TAN Fifth Plaintiff
AND	PETER WEE Sixth Plaintiff
AND	PAUL SENG POH KHOR Seventh Plaintiff
AND	AI NEE CHEAN Defendant
Hearing:	(On the papers)

Counsel:         No appearances for the First to Fifth and Seventh Plantiffs

G A D Neil for the Sixth Plaintiff
E Orlov and D Lee for the Defendant

Judgment:      26 May 2010 at 11:00 am

[COSTS] JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie on Wednesday, 26 May 2010 at 11am pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

H V DE ALWIS AND ORS V A N CHEAN HC AK CIV 2007-404-005357  26 May 2010

[1]      I dealt with this matter in a written judgment issued on 31 March 2010.   I awarded costs to the sixth plaintiff, Mr Wee, as the successful party.  I fixed costs on a 2B basis.  I also held that Mr Wee is entitled to his reasonable disbursements.  I recorded that if there was any dispute, the same was to be referred to me by written memoranda to be filed within 10 working days of judgment.

[2]      Costs   were   calculated   for   Mr   Wee   on   a   2B   basis,   together   with disbursements.   The calculations were referred to the defendant’s, Mrs Chean’s, solicitors by letter sent by facsimile on 7 April 2010.

[3]      No response was forthcoming, and notwithstanding that a follow up letter was sent requesting an urgent reply.

[4]      On 16 April 2010, counsel for Mr Wee filed a memorandum seeking a costs order.

[5]      At much the same time, there was a summary judgment application between the parties.   The issues of costs became intertwined with the summary judgment application.  In the event, on 14 May 2010, Associate Judge Faire directed that the issue of costs in relation to the matter with which I dealt should be referred to me.

[6]      No memorandum was filed on Mrs Chean’s behalf in relation to costs within the timeframe ordered by me.   Rather, a memorandum dated 11 May 2010 from counsel for Mrs Chean submitted that unnecessary costs had been incurred as a result of Mr Wee’s actions, and that there should be no costs awarded against Mrs Chean. It was also submitted that the time allocation for preparing and filing a notice of opposition without an accompanying affidavit was “excessive and misconceived”.  It was asserted that the hearing was only concerned with, and confined to, the variation of an asset preservation order, and that it should only have taken one hour of hearing time.    It  was  counsel’s  submission  that  costs should  lie  where  they fell,  or  be minimal.

[7]      A subsequent memorandum has been filed dated 12 May 2010 on behalf of

Mr Wee.  It deals with each of the points raised by counsel for Mrs Chean.

Analysis

[8]      I note first that Mrs Chean failed to engage on the issue of costs within the timeframe fixed by me.  Mr Wee complied with the timetable order.

[9]      In my judgment I held that Mr Wee was entitled to costs.  There has been no appeal against that judgment insofar as I am aware.  The submission made on behalf of Mrs Chean that costs should lie where they fall cannot stand.  I have ordered costs in favour of Mr Wee and that judgment must now stand until and unless it is set aside on appeal.

[10]     There are two issues taken with the cost calculations prepared on Mr Wee’s behalf and annexed to the relevant memorandum.  First, it is contended that 0.6 of a day, being the amount claimed by Mr Wee for preparing a notice of opposition was “excessive and misconceived”.  There can be no basis for that assertion.  The time allowance for filing a notice of opposition is set by the relevant rules.   It is a necessary step in the proceedings.  It cannot be said to be misconceived.  The notice of opposition was fully particularised.   I accept the assertion made by counsel for Mr Wee that time was taken in researching the matter, assessing the merit of the application, and in deciphering the grounds being taken by Mrs Chean.   The allowance of 0.6 of a day is outlined in the third schedule and one of the rationales behind the High Court Rules relating to costs is to provide certainty to the parties.

[11]     As for the hearing time taken, again there is no basis for this assertion. Mrs Chean was seeking to retain a weekly payment being made to her.  She opposed the variation of the asset preservation order.  Much of the hearing time was taken up with submissions made on her behalf.

[12]     I note further that Mr Wee has been put to additional expense in relation to this matter.  He has had to incur the costs of preparing the initial memorandum of

16 April 2010 and the further memorandum of 12 May 2010.  Those steps should not have been necessary.  The grounds advanced on Mr Chean’s behalf in opposition to the costs sought are misconceived.

[13]     In my view, it is appropriate to allow Mr Wee costs for preparing the relevant memoranda.     The  third  schedule  allows  0.4  of  a  day  for  preparation  of  a memorandum in relation to a case management conference at a mentions hearing.  In my view, an increase in costs by me than initially claimed by 0.4 day — $640 — is appropriate given the extra two memoranda required.

[14]     Accordingly, I fixed costs on a 2B basis of $5,120.  I also fix disbursements in the sum of $731.73.  It follows that I make a costs order in Mr Wee’s favour of

$5,851.73.

Wylie J

Solicitors/Counsel:

Meredith Connell, P O Box 2213, Auckland 1140

Botany Law, P O Box 64 106, Auckland

E Orlov, P O Box 8333, Auckland