Delegat v Norman - [2014] NZHC 1929

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-004444 [2014] NZHC 1929

BETWEEN
JAKOV NIKOLA DELEGAT as trustee of

the JIM DELEGAT BUSINESS TRUST First Plaintiff

BOAT 93 HOLDINGS LIMITED (in liquidation)

Second Plaintiff

AND

CHRISTOPHER JOHN NORMAN Defendant

AND

JULIE ANNE SALTHOUSE Third Party

On thepapers: 24 June 2014

Appearances:

P Davison QC aqnd CT Patterson for Plaintiffs
D Chisholm QC and T Mullins for Defendant
E Werry for Third Party

Judgment:

15 August 2014

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Friday, 15 August 2014 at 4.45 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

JAKOV NIKOLA DELEGAT as trustee of the JIM DELEGAT BUSINESS TRUST v CHRISTOPHER JOHN NORMAN [2014] NZHC 1929 [15 August 2014]

Introduction

[1] On 20 May 2014, I fixed costs to be paid to the defendant following the substantive proceeding and the subsequent unsuccessful recall application.1
Pursuant to that judgment the third party, Ms Julie Salthouse, applies for costs against the plaintiffs. The plaintiffs accept that costs follow the event but dispute the amount that should be awarded.

The substantive proceedings2

[2] Ms Salthouse submits that costs of $36,341.80 should be awarded to her for costs incurred as a third party to the substantive proceedings. That sum is calculated on a 2B basis and is said to consist of the following amounts:

(a) $13,348.00 for 7.1 days of preparation at $1880 per day, being the daily rate for the period prior to 14 June 2012;

(b)$22,885.00 for 11.5 days at $1990 per day, being the daily rate for the period after 14 June 2012; and

(c) $108.80 for filing fees.

[3] The plaintiffs submit that it would be inappropriate for costs to be awarded of that quantum until and unless Ms Salthouse demonstrates (for example via time records) that her counsel actually undertook the steps set out in the table provided by Ms Salthouse. In any event, the plaintiffs also submit that Ms Salthouse unnecessarily contributed to the expense of proceedings by changing her position as to the knowledge of the defendant shortly before the trial begun.3

[4] Dealing with the second argument first, I do not consider that Ms Salthouse contributed to the expenses incurred in any meaningful way because it is more than
likely that the proceedings would have proceeded despite her testimony. The third

1      Delegat v Norman [2014] NZHC 1099.
2      Delegat v Norman [2012] NZHC 2358.
3      High Court Rules, r 14.7(f).

party and defendant’s legal costs would therefore have been likely to have accrued in

any event.

[5] Turning to the first argument, Ms Salthouse points to my order at [30] of the costs judgment where I directed that the plaintiffs were to pay the costs of Ms Salthouse on a 2B basis.

[6] She also notes r 14.2(e) of the High Court Rules that provides that the appropriate daily recovery rate and what is considered a reasonable time for a step does not depend on…

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 Delegat v Norman

Details

AGLC: Delegat v Norman [2014] NZHC 1929
Case: [2014] NZHC 1929
Decision Date: 15 August 2014

CaseChat Overview and Summary

In the High Court of New Zealand, Auckland Registry, the case of Delegat v Norman involved a dispute between Jakov Nikola Delegat as trustee of the Jim Delegat Business Trust and Christopher John Norman. Julie Anne Salthouse also participated as a third party in the proceedings. The primary issue before the court was the determination of costs to be awarded to Julie Salthouse for her involvement as a third party in both the substantive proceedings and a subsequent recall application.

The court had to decide whether the requested costs by Julie Salthouse were reasonable and whether she had contributed to the proceedings in a manner that would justify a reduction in the costs awarded. Julie Salthouse claimed costs of $36,341.80 for the substantive proceedings and $16,403.10 for the recall application. The plaintiffs argued that the costs should not be awarded in full without proof of the actual time spent and that Salthouse's last-minute change in her testimony contributed to the expense. The court considered these arguments and examined the High Court Rules and previous judgments in the matter.

The court found that Julie Salthouse did not significantly contribute to the proceedings' expense and that her involvement was inevitable if the defendant were found liable. It was held that the costs claimed were reasonable and aligned with the nature of the proceedings. The court emphasized the importance of predictable and expeditious determination of costs and decided that requiring detailed records to verify time spent would not be in line with the rules. However, the court also noted that the costs should not exceed the actual costs incurred. Consequently, the court awarded costs of $36,341.80 for the substantive proceedings, subject to reduction if it exceeded the actual costs incurred, and $16,403.10 for the recall application.

The final orders of the court were that Julie Salthouse was to be awarded costs of $36,341.80 for the substantive proceedings and $16,403.10 for the recall application, subject to the condition that the costs do not exceed the actual costs incurred in the substantive proceedings.

Orders