EA v Rennie Cox Lawyers - [2024] NZHC 1417

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-000861

CIV-2023-404-000870 [2024] NZHC 1417

BETWEEN
EA

Appellant

AND

RENNIE COX LAYWERS

Respondent

Hearing: On the papers

Appearances:

RJ Hollyman KC for the Appellant (Defendant)

SP Bryers for the Respondent and Cross-Appellant (Plaintiff)

Judgment:

31 May 2024

COSTS JUDGMENT OF BECROFT J

This judgment was delivered by me on 31 May 2024 at 11 am Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors/Counsel:

Friedlander & Co Ltd, Auckland Rennie Cox Lawyers, Auckland

RJ Hollyman KC, Auckland S Bryers, Auckland

EA v RENNIE COX LAYWERS [2024] NZHC 1417 [31 May 2024]

The history of the proceeding

[1] Behind this costs application sits a substantial, if not enormous, litigation history.

[2] On 29 March 2012, Rennie Cox filed a claim in the North Shore District Court to recover unpaid barrister’s fees of $95,738.51 from Ms EA. Since 2012, Ms EA has repeatedly tried to have the proceedings struck out on technical and/or procedural grounds. At least 15 judgments have been issued across all levels of the courts. In fairness to Ms EA, I record that some of these proceedings related to an unsatisfactory judgment by default that was obtained by Rennie Cox and was subsequently set side as a result of her application.

[3] The consistent theme in these proceedings is the persistent pursuit of (often fruitless) interlocutory applications of a procedural nature. That comes at the expense of judicial time and resources, not to mention the cost being incurred by the parties. And still the substantive claim remains unresolved. That is despite the Court of Appeal’s insistence in 2021 that “the proceeding should be heard and determined on its merits in the District Court without further delay.”1 Judge Sinclair echoed that concern in 2022 when she said, it is “now imperative that this matter gets on for hearing without further delay as was envisaged by the Court of Appeal in December 2021.”2

My decision on the two appeals

[4] On 24 November 2023, I delivered my judgment in this matter. In that judgment I dismissed Ms EA’s two appeals against interlocutory decisions made in the District Court. I found that both appeals were without merit.

[5] The first appeal, amongst other things, concerned whether Rennie Cox properly and timeously filed and served a statement of claim, as directed by the Court of Appeal, given it was filed using the wrong email address for the North Short District Court. The email address used was monitored by the North Shore Registry, and

1 Rennie Cox Lawyers v EA [2021] NZCA 648 at [3].
2 Rennie Cox Lawyers v EA [2022] NZDC 5499 at [33].

opposing counsel and the instructing solicitor did receive a copy of the documents. I concluded that the email used did not constitute a “fatal defect” in the filing of the statement of claim; and even if it did, r 1.10 of the District Court Rules 2009 would cure that…

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.

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Details

Case: [2024] NZHC 1417
Decision Date: 31 May 2024

CaseChat Overview and Summary

The case of EA v Rennie Cox Lawyers concerns a long-running dispute over unpaid barrister’s fees amounting to $95,738.51, initially filed by Rennie Cox in the North Shore District Court in 2012. Over the years, the proceedings have been marked by numerous interlocutory applications and appeals, resulting in at least 15 judgments across various courts. Despite directions from the Court of Appeal and the District Court, the substantive claim has yet to be resolved. The court was tasked with deciding the costs associated with two appeals dismissed by the High Court on 24 November 2023. The legal issues centred around the calculation of scale costs, the appropriateness of an uplift in costs, and the relevance of a Calderbank offer made by the appellant.

The court addressed the calculation of costs by acknowledging the parties' disagreement over certain steps, such as preparing the case on appeal and commencing a response to the appeals. The court awarded half of the costs claimed for preparing the case on appeal to Rennie Cox, recognising the respondent's efforts in responding to the appellant's draft list and preparing supplementary materials. The court also found that the respondent was entitled to costs for commencing a response to the appeals, as this step allows for the review of the decision under appeal and consideration of the merits of the appeal. Regarding the Calderbank offer, the court deemed it of limited relevance given that the appellant was not the successful party on appeal. The court decided to approve costs in excess of the scale by a nominal amount of 10 per cent, reflecting the appellant's pursuit of meritless technical procedural arguments that delayed the substantive hearing of the claim. The court limited the increase to 10 per cent to avoid further litigation over costs and urged the parties to focus on resolving the substantive issues.

In summary, the court awarded Rennie Cox costs of $17,925.00, uplifted by 10 per cent to $19,717.50, plus disbursements of $647.79, for a total of $19,717.50. This decision underscores the importance of adhering to court directions and focusing on the substantive merits of claims rather than pursuing procedural technicalities that do not advance the resolution of the underlying dispute.

Orders