Deliu v National Standards Committee

[2014] NZHC 3386

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-001857 [2014] NZHC 3386

BETWEEN

FRANCISC CATALIN DELIU Appellant

AND

NATIONAL STANDARDS COMMITTEE

Respondent

Hearing:	On the papers
Appearances:	Appellant in person P J Morgan QC and O Morgan for Responents
Judgment:	22 December 2014

JUDGMENT OF WOOLFORD J [As to costs]

This judgment was delivered by me on Monday, 22 December 2014 at 11.00 a.m. pursuant to r 11.5 of the High Court Rules 1985.

Registrar/Deputy Registrar

……………………………………

Solicitors / Counsel:

Mr F C Deliu, Solicitors, Auckland
Mr P J Morgan QC, Barrister, Hamilton

Glaister Ennor (respondent’s instructing solicitors), Solicitors, Auckland

FRANCISC CATALIN DELIU v NATIONAL STANDARDS COMMITTEE [2014] NZHC 3386 [22 December

2014]

[1]      In my decision of 15 October 2014, I awarded costs to Mr Deliu on a 2B basis.  Mr Deliu has now filed a memorandum setting out what he says is the appropriate  quantum  based  on  scale  costs  of  $12,139.00  and  disbursements  of

$1,658.20, together with costs of preparing the costs memorandum of $402.50.  The total sum sought by Mr Deliu is $14,199.70.

[2]      In response, Mr Morgan QC, on behalf of the National Standards Committee, does not take issue with the 0.4 days sought for the case management conference memorandum, the 1 day sought for the preparation of the case on appeal and the

0.5 days sought for the appearance at court on 8 October 2014.   He also does not take issue with the disbursements.

[3]      Issue is however taken with the 1 day sought for drafting and filing the notice of appeal, the 3 days sought for submissions, the 0.2 days sought for sealing the costs order and the further claim for $402.50 for the costs memorandum.

[4]      Mr Morgan submits that while Mr Deliu is entitled to costs as a consequence of the judgment of the Court of Appeal in Brownee Wills v Shrimpton,1  the time allocations and quantum are still very much matters for the Court.  Mr Morgan notes that the costs have not been incurred by Mr Deliu in the sense that he is the client of a barrister and solicitor and has paid those costs.  Instead the costs have to be seen as lost opportunity costs.   Mr Morgan concludes if Mr Deliu is to seek $14,199.70 based on time allocation, he should provide proper time records and evidence of his lost opportunity costs.

[5]      In response Mr Deliu has provided an unbilled work in progress report for the period 22 July 2014 to 16 December 2014 to confirm that his lost opportunity costs well  exceed  the  amount  he  claims.    It  discloses  that  Mr  Deliu  has  expended

31.6 hours in total on the appeal.  Two other employees have expended 6.9 and 3.6 hours respectively.  Mr Deliu also responds to criticism of Mr Morgan about the briefness of the notice of appeal and the lack of focus in Mr Deliu’s submissions on

the merits of the appeal.

1      Brownee Wills v Shrimpton [1998] 2 NZLR 320.

[6]      Having carefully considered the issues, I am of the view that I should not in this instance depart from scale costs.  The time records provided by Mr Deliu are evidence of his lost opportunity costs and do demonstrate that his total hours expended do exceed those allowable in time band B of Schedule 3 to the High Court Rules.  I am however not minded to award costs for sealing an order.  Here I accept Mr Morgan’s submission that this provision relates to general civil proceedings and not an appeal where the Court issues its own certificate as to the outcome of the appeal.  I also disallow Mr Deliu’s claim for $402.50 for filing a costs memorandum. Mr Deliu did not raise the issue of quantum with Mr Morgan but simply filed his memorandum.

[7]      In those circumstances the National Standards Committee is to pay Mr Deliu costs of $11,741 plus disbursements of $1,658.20, totalling $13,399.20.

……………………………….

Woolford J