Legal Research
Cases
Delegat v Norman

Delegat v Norman

Case [2014] NZHC 1099 22 May 2014

Civil Litigation & Procedure

Costs

No judgment structure available for this case.

Type to search within this case.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-004444 [2014] NZHC 1099

BETWEEN
JAKOV NIKOLA DELEGAT aka JIM

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

Hearing: On the papers

Appearances:

P J Davison QC, C T Patterson and E J Grove for Plaintiffs G P Blanchard and J P Nolen for Defendant (on substantive claim)

D J Chisholm QC, T P Mullins and S L Jackson for Defendant

(on application to recall judgment)

D G Collecutt for Third Party (on substantive claim)

E J L Werry for Third Party (on application to recall judgment)

Judgment:

22 May 2014

COSTS JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Thursday, 22 May 2014 at 4.00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors: Jones Young, Auckland Lowndes Associates, Auckland Simpson Dowsett Mackie, Auckland LeeSalmonLong, Auckalnd
P Davison QC, Auckland
D Chisholm QC, Auckland
C T Patterson, Auckland
G P Blanchard, Auckland

DELEGAT & Anor v NORMAN & Anor [2014] NZHC 1099 [22 May 2014]

Introduction

[1] On 17 December 2013, I dismissed the plaintiffs’ application for recall of my judgment given 4 December 2012. Costs were to follow the event. The defendant requests that the Court fix costs in relation to the application for recall on a 3C basis, with uplifts by way of increased costs for time required, lack of merit, plus disbursements. I am also requested to fix costs for the substantive proceeding.

Submissions for defendant

Costs of recall application

[2] The defendant was put to the cost of instructing new solicitors and counsel. This meant that in the defendant’s submission, a comparatively large amount of time was required for the steps associated with opposing the application. The appropriate costs categorisation and time band is 3C as the factual position was complex and both parties instructed senior counsel. A comparatively large amount of time was required for the steps assocated with opposing the application. It was necessary for Mr Norman’s new counsel to review documentation relating to the trial which was more time consuming than preparing for an ordinary interlocutory application. Scale costs calculated on a 3C basis are $16,905.00.

[3] Mr Norman also seeks increased costs as the nature of the application was such that the time required by him substantially exceeded the time allocated under band C. He seeks an uplift of one day, bringing costs to $20,000. The application was unnecessary and lacking in merit. It ought to have been clear to the plaintiffs that the alleged evidence of perjury was insufficient and the application would not succeed. Mr Norman seeks an uplift under r 14.6(3)(b)(ii) from costs of $20,000 to
$25,000. Disbursements of $366.80 are sought.

[4] In reply to the submission of the plaintiffs that the defendant did not need to engage new counsel if there was no wrongdoing by the defendant’s previous…

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 1099
Case: [2014] NZHC 1099
Decision Date: 22 May 2014

CaseChat Overview and Summary

In Delegat v Norman, the High Court of New Zealand was asked to determine the costs of a recall application and substantive proceeding. The plaintiffs, Jakov Nikola Delegat and Boat 93 Holdings Limited, sought a recall of the Court's judgment given on 4 December 2012. The defendant, Christopher John Norman, was required to respond to the costs of the recall application and the substantive proceeding. The Court assessed the costs based on the High Court Rules and relevant case law.

The primary legal issues were the categorisation of the costs, the time allocation for each step, and the application of increased costs. The Court considered whether there were special reasons for re-categorising the costs, whether the time taken for certain steps would substantially exceed the time allocated under band C, and whether the plaintiffs had acted unreasonably by not accepting the defendant's Calderbank offer. The Court also assessed the costs for the third party, Julie Anne Salthouse, and whether the plaintiffs were liable for her costs.

The Court determined that special reasons did not exist for re-categorising the costs of the recall application, and the proceeding was categorised as 2C. The Court increased the costs for the recall application by one day due to the time taken for preparation exceeding the time allocated under band C. The Court further uplifted the costs by 25% due to the plaintiffs not having an evidential foundation sufficient to establish a prima facie or arguable case of fraud. The Court awarded disbursements of $336.80 to the defendant for the recall application.

For the substantive proceeding, the Court held that the plaintiffs were liable for the third party's costs on a 2B basis. The Court directed the defendant to apply the old Schedule to time before the current Schedule came into force and the current Schedule to time spent following its coming into force. The Court declined to award costs for preparation of costs memorandum and costs on costs matters.

The final orders were that the defendant was to receive costs on the application for recall of $16,790.60 and disbursements of $336.80. The defendant was to receive costs on a 2B basis for the substantive proceeding, including the commencement of both defences, but was to apply the old Schedule to time before the current Schedule came into force and the current Schedule to time spent following its coming into force. The defendant was to receive costs for his preparation of an amended statement of defence, but not for his costs memorandum. The defendant was to receive disbursements of $53,873.38 for the substantive proceeding.

Orders