Dunstan v Bank of New Zealand

[2023] NZHC 1286

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-1114

[2023] NZHC 1286

UNDER

the Bills of Exchange Act 1908, Bank of New Zealand Act 1971, Bills of Rights Act 1908, and Fair Trading Act 1986

BETWEEN

TANYA FELICITY DUNSTAN

Plaintiff

AND

AND

BANK OF NEW ZEALAND

First Defendant

EDDIE (WHETŪ) RANGI

Second Defendant

Hearing:	(On the papers)
Appearances:	T F Dunstan – Plaintiff in person L M Edginton for Defendants
Judgment:	29 May 2023

JUDGMENT OF ASSOCIATE JUDGE LESTER

(As to quantum of costs)

This Judgment was delivered by me on 29 May 2023 at 12pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date: …..

DUNSTAN v BANK OF NEW ZEALAND [2023] NZHC 1286 [29 May 2023]

[1]    In this proceeding, Ms Dunstan applied for summary judgment against the Bank of New Zealand (BNZ), which responded with an application to strike out her claim. The BNZ was successful.1 I held BNZ was entitled to costs. As to the quantum of costs, I ordered that if counsel for BNZ did not file costs submissions within a specified time, the costs order would be that BNZ was entitled to costs on a 2B basis plus disbursements as fixed by the Registrar.

[2]    BNZ filed a claim for increased costs within the time specified in the judgment. In terms of the original order, Ms Dunstan had 10 working days to reply. The deadline for Ms Dunstan to file her reply submissions on costs was extended to 21 April 2023 for the reasons explained in a minute dated 5 April 2023.

[3]    On 1 May 2023, the Registrar emailed the parties asking whether Ms Dunstan had filed a reply memorandum in respect of costs. Counsel for BNZ replied the same day by email advising that he had not received a costs memorandum. No costs memorandum has been received from Ms Dunstan and on 10 May 2023 the Registrar referred the file to me to determine BNZ’s application for increased costs.

Costs on a 2B basis – quantum

[4]    BNZ had to meet Ms Dunstan’s application for summary judgment and advance its own application to strike out. Counsel for BNZ has a schedule of costs on a 2B basis relating to the steps taken in respect of each application. The total claim on a 2B basis is $17,088.50. That sum includes an allowance for claiming increased costs.

Claim for a 50 per cent uplift

[5]    Under r 14.6(3) of the High Court Rules 2016 (the Rules), the Court may order a party to pay increased costs if the unsuccessful party has contributed unnecessarily to the time or expense of the hearing by pursuing an unnecessary step or an argument that lacks merit or failing to accept a legal argument.

1      Dunstan v Bank of New Zealand [2023] NZHC 200.

[6]BNZ set out its reasons for claiming increased costs. They are as follows:

(i)That Ms Dunstan’s claim clearly lacked merit and she failed without reasonable justification to accept BNZ’s legal  argument.  I  agree.  Ms Dunstan’s claim clearly lacked merit, hence it was struck out.

(ii)BNZ submits that Ms Dunstan was aware her proceeding was without merit as she had in another context sought to pay security for costs in the Court of Appeal by way of a Promissory Note. The issue in this proceeding was whether Ms Dunstan sending a Promissory Note to BNZ was good payment of a debt owed by a third party. In the Court of Appeal proceeding, Ms Dunstan was advised that absent the agreement of the recipient, Promissory Notes are generally not an accepted method of payment.2 The Court of Appeal noted there is nothing in the Bills of Exchange Act 1908 which requires Promissory Notes to be accepted by any party. Ms Dunstan relied on the Bills of Exchange Act in this proceeding.

(iii)BNZ submits Ms Dunstan was on notice that Promissory Notes require acceptance and that the Bills of Exchange Act does not require Promissory Notes to be accepted. Therefore, by her running in substance essentially the same argument in this proceeding, it was unnecessarily and unreasonably commenced and continued. I agree.

[7]A fifty per cent uplift is ordered accordingly.

Disbursements

[8]    There can be no issue with the claiming of Court filing fees. There is a fee for searching the Court file incurred because the proceeding was initially served on BNZ informally by email without the notice of proceeding being endorsed and so BNZ undertook searches of the Court file to understand the status of the proceeding. It was

2      Dunstan v Riddell [2021] NZCA 378.

reasonable for BNZ to take steps to confirm if the proceeding had been filed and when. That expense is approved.

[9]    LINZ fees for property title searches are approved. The affidavit filed by the defendant produced material that had been obtained from title searches. Agency fees for BNZ’s solicitor’s agent, which liaises with LINZ to perform title searches and liaises with the Court in undertaking Court searches are also claimed. Those fees are approved. It makes economic sense for BNZ to engage an agent to carry out such searches rather than have say a junior solicitor carry out those searches at an increased cost. The disbursements claimed by BNZ are approved.

[10]   Accordingly, there is judgment for BNZ against Ms Dunstan for costs in the sum of $25,632.75 and disbursements of $970.89.

Associate Judge Lester

Solicitors:
Ms Dunstan – Plaintiff in person

Buddle Findlay (for First and Second Defendant)