EA v Rennie Cox Lawyers

[2022] NZHC 1279

ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE APPELLANT AND THE BARRISTER ENGAGED BY RENNIE COX LAWYERS REMAINS IN FORCE.

SEE [2019] NZHC 3191 at [3].

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-2580

[2022] NZHC 1279

BETWEEN

EA

Appellant

AND

RENNIE COX LAWYERS

Respondent

Hearing:	On the papers
Appearances:	R J Hollyman QC and P B Friedlander S P Bryers for the Respondent
Judgment:	1 June 2022

JUDGMENT No 4 OF PALMER J

Solicitors:

Rennie Cox Lawyers, Auckland

EA v RENNIE COX LAWYERS [2022] NZHC 1279 [1 June 2022]

The latest chapter in these interminable proceedings

[1]                  These proceedings, about a dispute over legal fees, date back to 2012. Relevantly, on 5 December 2019, I allowed an appeal by EA and awarded costs and reasonable disbursements on a 2B basis.1 On 12 May 2020, I declined Rennie Cox’s application for leave to appeal.2 On 18 June 2020, I clarified the quantum of costs awarded.3  On 14 August 2020, the Court of Appeal granted leave to appeal and on   3 December 2021 allowed the appeal.4 The Supreme Court declined leave to appeal further.5

[2]                  On 14 February 2022, in relation to costs, the Court of Appeal ruled that EA must pay costs for a standard appeal on a band A basis and usual disbursements to Rennie Cox, for the appeal, and that costs in the High Court are to be fixed by the High Court in accordance with that judgment.6

Submissions

[3]                  Rennie Cox seeks an order for costs on a 2B basis and reasonable disbursements for the substantive appeal, and costs on a 1B basis and reasonable disbursements on a 1B basis for the application for leave to appeal. It calculates those costs as totalling $11,312 and $4,254.50 respectively.

[4]                  Mr Hollyman QC and Mr Friedlander, for EA, submit that no costs should be awarded to Rennie Cox because they participated in name only, are not out of pocket and cannot seek repayment by EA because counsel instructed by Mr M appeared on all steps in this matter. They submit I retain an overall discretion to refuse or reduce costs or award costs to EA instead, which they submit I should do. They also submit that the fact the Court of Appeal granted leave on one of the grounds on which I rejected leave to appeal does not invalidate my decision or warrant reversing the costs of that application.

1      EA v Rennie Cox Lawyers [2019] NZHC 3191.

2      EA v Rennie Cox Lawyers No 2 [2020] NZHC 958.

3      EA v Rennie Cox Lawyers No 3 [2020] NZHC 1372.

4      Rennie Cox Lawyers v EA [2020] NZCA 348; and Rennie Cox Lawyers v EA [2021] NZCA 648.

5      EA v Rennie Cox Lawyers [2022] NZSC 37.

6      Rennie Cox Lawyers v EA [2022] NZCA 15.

What costs award should I make now?

[5]                  The Court of Appeal overturned my substantive decision and the Supreme Court declined leave to appeal. Accordingly, Rennie Cox succeeded. Costs follow the event at full-time, rather than half-time. I award costs to Rennie Cox for the substantive appeal in the High Court on a 2B basis as sought. I do not consider that the indemnification arrangements sitting behind the litigation affects the Court’s award of costs.

[6]                  However, the Court of Appeal’s grant of leave to appeal did not overturn the High Court refusal of leave. As counsel for EA point out, Rennie Cox conceded before me that the ground on which their appeal was ultimately allowed by the Court of Appeal did not justify leave to appeal.7 And the Court of Appeal did not award costs to Rennie Cox in respect of that decision. I do not consider the costs award in respect of the application to the High Court for leave to appeal is disturbed. The existing award stands.

Palmer J

7      EA v Rennie Cox Lawyers No 2, above n 2, at [3](c) and [5](c).