EA v Rennie Cox Lawyers - [2018] NZHC 3320

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-1122

[2018] NZHC 3320

BETWEEN
EA

Appellant

AND

RENNIE COX LAWYERS

Respondent

Hearing: On the papers

Appearances:

R J Hollyman for Appellant S P Bryers for Respondent

Judgment:

14 December 2018

JUDGMENT OF LANG J

[re costs]

This judgment was delivered by me on14 December 2018 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

EA v RENNIE COX LAWYERS [2018] NZHC 3320 [14 December 2018]

[1] On 24 February 2017, I issued a judgment dealing with the issue of costs in relation to the unsuccessful appeal to this Court from the judgment of the District Court.1

[2] I directed that costs should lie where they fall in relation to steps taken up to the first hearing on 2 August 2016, and in relation to the second hearing on 25 November 2016. I awarded the appellant costs in relation to the hearing that commenced on 2 August 2016 and had to be aborted after counsel then appearing for the respondent accepted he was in a position of conflict. I awarded the appellant costs on a category 2B basis in respect of a half-day hearing together with a further day to reflect wasted preparation.

[3] I subsequently granted EA leave to appeal to the Court of Appeal2 and her appeal was ultimately successful.3 The Court of Appeal directed that EA was entitled to costs in the High Court on her appeal, with costs to be fixed by this Court.4

[4] The parties have again been unable to reach agreement regarding costs in this Court. I am therefore required to determine that issue on the basis of the memoranda filed.

The arguments

[5] For the appellant, Mr Hollyman submits that EA should receive an award of increased costs to reflect the fact that EA eventually succeeded on all issues and the respondent adopted a stance that was not reasonable in all the circumstances. He contends this will enable EA to be restored to the position she would have been in but for the respondent’s conduct. On Mr Hollyman’s calculations this will result in an

1      EA v Rennie Cox Lawyers [2017] NZHC 260.
2      EA v Rennie Cox Lawyers [2017] NZHC 770.
3      EA v Rennie Cox Lawyers [2018] NZCA 33, [2018] 3 NZLR 202.
4      EA v Rennie Cox Lawyers, above n 3, at [51].

award of costs on a category 2B basis of $35,011. An uplift of 50 per cent would result in an award of costs in the sum of $52,516.50.

[6] Mr Bryers for the respondent opposes any award of increased costs. He agrees that costs are appropriately calculated on a category 2B basis but submits the amounts claimed by EA in relation to the substantive appeal and the application for leave to the Court of Appeal appear to be extraordinarily high. He also questions whether EA should receive an…

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: [2018] NZHC 3320
Decision Date: 14 December 2018

CaseChat Overview and Summary

The case of EA v Rennie Cox Lawyers involves a dispute between the appellant, EA, and the respondent, Rennie Cox Lawyers, regarding the costs incurred in a legal proceeding that began in the District Court and was subsequently appealed to the High Court. The matter was further escalated to the Court of Appeal, where EA was successful. The High Court was then tasked with determining the costs to be awarded in relation to the appeal and the application for leave to appeal.

The primary legal issue before the court was whether EA was entitled to increased costs due to the respondent's conduct during the appeal process. EA's counsel argued for an increased costs award, asserting that the respondent's actions were unreasonable and that EA deserved to be restored to the position she would have been in had the respondent not acted in such a manner. The respondent, on the other hand, opposed any increase in costs, contending that the costs claimed were excessively high for the nature of the appeal and that the respondent had not acted unreasonably in any significant way.

The court considered the arguments presented by both parties, examining the High Court Rules 2016 to determine the appropriate basis for awarding costs. The court found that EA was entitled to costs on a category 2B basis for all steps taken in the appeal and the application for leave to appeal. However, the court concluded that an award of increased costs was not justified, as the respondent's conduct did not meet the criteria for such an award under rule 14.6 of the High Court Rules. The court emphasized that the problem in the case arose from the initial steps taken by the respondent in the District Court and did not extend to the manner in which the appeal was conducted by the respondent, except for the specific issue of the conflict of interest at one hearing.

The court did not address the issue of the exact quantum of costs at that stage, instead directing that any unresolved issues regarding costs should be referred to the Registrar for an initial determination, with further disputes to be brought before the court for final resolution.

Orders