Fielding v McIntyre - [2020] NZHC 3453

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2019-485-610

[2020] NZHC 3453

BETWEEN
ALISOHN JOAN FIELDING

Plaintiff

AND

ANDREW JAMES ALAN McINTYRE

Defendant

Hearing: On the papers

Counsel:

Plaintiff in Person

D M Abricossow and H J Dempsey for Defendant

Judgment:

18 December 2020

JUDGMENT OF CLARK J (COSTS)

[1] In my judgment delivered 28 August 2020 I recorded that, having succeeded in his strike-out application, Mr McIntyre was entitled to 2B costs.1 A timetable for the filing of submissions was set. On 30 October 2020 I issued a minute in response to a memorandum from Ms Fielding who objects to any award of costs and who sought an extension of time in which to file a further memorandum.

[2] An extension was granted and Ms Fielding filed a further memorandum on 6 November 2020 seeking a stay of the costs decision pending her appeal of the strike- out decision to the Court of Appeal. I deal with the merits of the stay application after my consideration of the parties’ respective positions in relation to costs.

1 Fielding v McIntyre [2020] NZHC 2232 at [34] [Strike-out decision].

FIELDING v McINTYRE [2020] NZHC 3453 [18 December 2020]

Costs

Plaintiff ’s position

[3] Ms Fielding opposes any costs award on a number of grounds. Ms Fielding’s main concern seems to be the defendant’s conduct of the hearing. Ms Fielding argues that irrelevant submissions were made to the Court, and irrelevant evidence was filed and relied on by the defendant. Ms Fielding also asserts breaches of counsel’s professional obligations to the Court.

[4] In relation to the defendant’s itemised costs schedule, Ms Fielding resists the costs sought for “preparation by the applicant of bundle for hearing” as she herself is the applicant and she did not authorise any work to be done on her behalf.

Defendant’s position

[5] On 17 January 2020 the defendant made a written settlement offer of $2,000 to the plaintiff (settlement offer). The settlement offer was without prejudice except as to costs. The defendant makes the point the settlement offer was obviously more favourable to the plaintiff than the outcome of the proceedings. On 29 January 2020 the plaintiff rejected the settlement offer.

[6] On 4 September 2020, in an effort to avoid further cost, counsel emailed the plaintiff requesting payment of its 2B costs and disbursements in the sum of $10,917. No response or payment was received.

[7] The defendant has incurred actual legal costs of $34,086 plus GST and disbursements, of which $28,386 and disbursements were incurred after the settlement offer was made. The defendant seeks indemnity costs or an increase on scale costs pursuant to r 14.6 of the High Court Rules 2016.

Discussion

[8] An order for indemnity costs will not be met unless the conduct is “flagrant”.2 The threshold for indemnity costs is not met in this case. The defendant has not shown exceptionally bad behaviour on the part of Ms Fielding…

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.

Continue reading Fielding v McIntyre

Details

AGLC: Fielding v McIntyre [2020] NZHC 3453
Case: [2020] NZHC 3453
Decision Date: 18 December 2020

CaseChat Overview and Summary

In Fielding v McIntyre, the plaintiff, Alisohn Joan Fielding, sued the defendant, Andrew James Alan McIntyre. The case, which was heard in the High Court of New Zealand, Wellington Registry, involved a dispute over costs awarded to the defendant following a successful strike-out application. The plaintiff opposed the costs award on several grounds, including the defendant’s conduct of the hearing, and sought a stay of the costs decision pending her appeal of the strike-out decision to the Court of Appeal.

The court considered whether the defendant's conduct warranted an award of indemnity costs, which requires “flagrant” conduct. The court found the threshold for indemnity costs was not met as the defendant did not demonstrate exceptionally bad behavior by the plaintiff or other circumstances warranting such an award. The court also rejected the plaintiff's allegations of unprofessional conduct by the defendant's counsel as unsupported. The court then assessed whether the plaintiff's failure to accept a settlement offer without reasonable justification warranted increased costs. Given the unmeritorious nature of the claim and the plaintiff's unreasonable refusal of the settlement offer, the court deemed it appropriate to award increased costs.

In determining the amount of increased costs, the court considered the unmeritorious nature of the claim and the plaintiff's failure to accept a settlement offer without reasonable justification. The court found that the plaintiff's refusal to accept the $2,000 settlement offer was unreasonable, and her failure to act reasonably contributed to the time and expense of the proceeding. The court awarded a 40% uplift on the costs claimed, resulting in an order for costs of $14,387.80 together with disbursements of $640.

The court also denied the plaintiff's request for a stay of the costs order, as the plaintiff's appeal would not be rendered nugatory if a stay was not granted, and the appeal did not involve novel or important questions. The court found that the defendant was entitled to his costs.

Orders