Emery v Thorn

[2019] NZHC 278

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-000389

[2019] NZHC 278

UNDER

The Declaratory Judgments Act 1908 and Property (Relationships) Act 1976

BETWEEN

ELIZABETH EMERY by her Litigation Guardian, DAVID DOMINIC RICE

Plaintiff

AND

LEO HAROLD THORN

First Defendant

TONY JOHN THORN

Second Defendant

Hearing:	On the papers
Counsel:	A Gilchrist for the plaintiff D J Taylor for the defendants
Judgment:	27 February 2019

JUDGMENT OF WOOLFORD J

[As to costs]

This judgment was delivered by me on Wednesday, 27 February 2019 at 12.30 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:Kiely Thompson Caisley, Auckland for the Plaintiff Ryan Law, Te Aroha for the First and Second Defendants

Counsel:            A Gilchrist, Auckland for the Plaintiff

D J Taylor, Hamilton for the First and Second Defendants

EMERY v THORN [2019] NZHC 278 [27 February 2019]

[1]                   On 4 December 2018, I gave judgment for the plaintiff on her application that the actual and reasonable costs of an application for letters of administration filed by her in the High Court should be met from the estate of her de facto partner, who had died intestate. I directed that her actual and reasonable costs should be reimbursed from the estate. However, I noted that the plaintiff had provided insufficient details for the Court to assess whether all costs were reasonably incurred and reasonable in amount. I encouraged the plaintiff and the defendants, being the de facto partner’s sons, to reach agreement on this point.

[2]                   Regrettably, agreement has not been reached. I have now received memoranda from the plaintiff dated 31 January 2019 and 14 February 2019, and from the defendants dated 12 February 2019.

[3]                   The plaintiff seeks an order that her reasonable costs and disbursements be fixed at $49,132.40, being solicitors costs and disbursements of $16,057.40 and counsel’s fee and disbursements of $33,075. The solicitors have charged just over  43 hours at $300 per hour, while counsel has charged 60 hours at $475 per hour. He says he has in fact expended more time – just on 65 hours. The plaintiff annexes invoices to her memorandum dated 31 January 2019. The invoices cover a three year period. In addition, counsel has provided a copy of nine job cards which were transferred from his time sheets. They reveal attendance on 171 separate days, commencing with a review of the papers on 22 February 2016. Proceedings were initially drafted in October and November 2017 and filed in March 2018. Proceedings included a separate application that the plaintiff’s solicitor be appointed a litigation guardian for her.

[4]                   In response, the defendants say that the plaintiff’s claim is an extraordinary amount of time for such routine attendances. Counsel for the defendant submits that he has made such applications including writing and requesting medical reports, getting reports, drafting the papers, including a memorandum for the presiding Judge in less than four hours.

[5]                   The defendants say that the sum of $35,000 is more than reasonable. By way of contrast, the defendants say that their costs up to judgment only totalled $12,000,

including disbursements and GST. The defendants’ costs obviously represent much more than four hours.

[6]                   The defendants say that to obtain the information the Court requested on the reasonableness of the costs incurred, access to the plaintiff’s files is needed. The defendants do not have access and neither do they want it. The defendants instead seek an order allowing them to refer the matter to the Law Society so that a costs revision can be undertaken. They say it would be more efficient for an experienced costs revision practitioner to troll through all the material on the plaintiff’s file rather than the Court.

[7] I do, however, have doubts about the course of action proposed by the defendants. The Act replaced by the Lawyers and Conveyancers Act 2006 did have a provision for the Court to refer matters to the Law Society, but this was not carried forward to the new legislation. Recognising that difficulty, the defendants do not ask the Court to make the referral. Instead, they seek the opportunity to enable them to make the referral under the combined effect of ss 132(2) and 160 of the Lawyers and Conveyancers Act 2006.

[8]                   I think it preferable, however, to make a decision now on the papers rather than incur further delays and costs.

[9]                   I accept that I am not in a position to scrutinise all the material on the plaintiff’s file. I do accept, however, that the plaintiff is entitled to a substantial award of costs from the estate of her de facto partner for the reasons set out in my judgment of 4 December 2018. It is now my task to make an overall assessment of the reasonableness of the costs incurred by the plaintiff.

[10]               Litigation seldom runs smoothly. In this case, the defendants filed their own application for letters of administration. Counsel for the plaintiff characterised this case as ‘enormously time consuming’. The plaintiff was found to be mentally unable to conduct her case. Litigation takes time, especially if evidence is being sought and alternatives considered. Settlement talks take time and increase costs.

[11]               It is not uncommon for a plaintiff to incur substantially more costs than a defendant. They, after all, have the onus of proving their case or persuading the Court that an order is appropriate.

[12]               In her memorandum dated 31 January 2019, the plaintiff annexed a letter to the defendants dated 12 December 2019 in which she said she was prepared to limit her claim to the sum of $44,142 including GST and disbursements if an agreement could be reached. In response, the defendants advised the plaintiff that they might agree to costs of $35,000 if their own costs were reimbursed by the estate. No dispute is taken by the defendants with the hourly rate charged by the plaintiff’s solicitor and counsel. Nor is there any dispute with the disbursements claimed. The sole issue is the amount of time expended by the plaintiff’s solicitors and counsel.

[13]               I accept that over the period of three years there has to have been a measure of duplication of work because of the stop-start nature of the dispute and the resultant litigation. Overall, I am of the view that an allowance of 20 per cent should be made. I therefore order that the estate pay the sum of $40,000 including GST and disbursements to the plaintiff as her reasonable costs in this litigation.

Woolford J