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, AucklandG 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…
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- Delegat v Norman [2014] NZHC 1099
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- [2014] NZHC 1099
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CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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