Faesenkloet v Jenkin

[2014] NZHC 1868

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-000873 [2014] NZHC 1868

BETWEEN

HERBERT JOHN FAESENKLOET

Plaintiff

AND

PAUL JENKIN Defendant

Hearing:	On the papers
Counsel:	PJ Dale for Plaintiff WGC Templeton for Defendant
Judgment:	8 August 2014

JUDGMENT OF ASHER J (Costs)

This judgment was delivered by me on Friday, 8 August 2014 at 1pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

Neilsons Lawyers Ltd, Auckland.

PJ Dale, Auckland.

Dyer Whitechurch,Auckland. WGC Templeton, Auckland.

FAESENKLOET v JENKIN [2014] NZHC 1868 [8 August 2014]

Introduction

[1]      On 11 July 2014 I declined what was in effect an application for an interim injunction by the plaintiff, Herbert Faesenkloet.

[2]      In essence Mr Templeton for the defendant, Paul Jenkin, seeks 2B costs as costs following the event, together with a 50 per cent uplift.  In support of his request for an uplift he referred to the fact that there were matters not disclosed in the original application for orders that should have been disclosed, and the Court was misled.  He also relied on the fact that there was unreasonably short notice given of the original interim hearing, and this had led to extra costs.  He claims there had to be two applications, the first to set aside the order for interim injunction, and the second to rescind it.

[3]      Mr Dale  for the  plaintiff  accepts  that  2B costs  are  appropriate,  as  costs following the event.   He contests the uplift, and submits that costs should be calculated on a single application and not two.  He points to some disbursements that were not particular to the injunction hearing.  He denies that the Court was misled at the first hearing or that there were material errors in Mr Faesenkloet’s application. He says that the urgent procedure was appropriate in the circumstances and points out that Mr Jenkin did not appear despite having notice of the hearing.

Decision on uplift

[4]      I do not think this is an appropriate case for any increase in costs.   While there were matters that should have been disclosed in the initial application but were not, I see this as the result of the urgency of the situation rather than from any deliberate intention to mislead.   When Mr Jenkin was served with notice of the interim injunction application, he failed to note the 28 April 2014 date and did not appear. That is what led to the making of the default orders.

[5]      Despite the short notice Mr Jenkin should have appeared and this factor to an extent cancels out some of the sympathy to which he might otherwise have been entitled to in relation to the procedure adopted, and the need to apply to set aside the judgment.   This failure to attend led to extra costs, including the cost of an extra

hearing  for  Mr  Faesenkloet.    There  were  therefore  procedural  failures  by  both parties.

[6]      Further,  I referred in the substantive judgment to the fact that this is an unfortunate  dispute  involving  misunderstandings  on  both  sides.    It  should  be resolved, and the parties have agreed that a settlement conference is appropriate. Ordering increased costs will not assist that process.

[7]      For these reasons I decline to award any uplift to the ordinary costs.

Specific issues

[8]      I  agree  with  Mr  Dale  that  costs  should  only  be  calculated  on  a  single application and not on the two.  I am prepared to approve the $398 disbursement for sealing the judgment, as Mr Jenkin was entitled to a sealed judgment, and there is work involved in that process, providing it is actually incurred.  I do not approve the filing fee on the second application, the need for which arose because of the lack of Mr Jenkin’s appearance at the first hearing.  The filing of the statement of defence as they would have been necessary disbursement in the proceeding in any event and cannot be claimed.

[9]      I agree that there appears to be a typographical error and that the costs for appearing at the hearing are $1,990.   This is a matter which Mr Dale has very properly pointed out.

Result

[10]     I order costs to be paid by the plaintiff to the defendant in accordance with the schedule attached to Mr Dale’s application, with the addition of the costs of sealing the judgment of $398, providing they are actually incurred.

……………………………..

Asher J