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 or identified other circumstances warranting an award of indemnity costs.3 The “truly exceptional” circumstances in which indemnity costs may be ordered where, for example, the party has behaved badly or very unreasonably, are not made out here.

[9]                 Having determined this is not an appropriate case for an award of indemnity costs I turn to the defendant’s case for increased costs. Before doing so I wish to record that Ms Fielding’s allegations of unprofessional conduct on the part of counsel for the defendant are unsupported and, to my mind as the hearing Judge, unfounded.

[10]              In support of his case for increased costs the defendant submits that the plaintiff:

(a)has pursued a claim which is without merit;

(b)failed, without reasonable justification, to admit facts, evidence, documents, or accept a legal argument;4 and

(c)failed, without reasonable justification, to accept an offer of settlement.

[11]              I consider it appropriate in the circumstances of this proceeding to award increased costs in light of the  unmeritorious  nature  of  the  claim  coupled  with  Ms Fielding’s failure to accept an offer of settlement without reasonable justification.5

[12]              In assessing whether a failure to accept a settlement offer is reasonable, the Court’s assessment is a broad one taking into account the offer itself, its timing, its

2      Bradbury v Westpac Banking Group [2009] NZCA 234, [2009] 3 NZLR 500 at [28], citing Prebble v Awatere Huata (No 2) [2005] 2 NZLR 467 (SC) at [6].

3 See for example the discussion at [29].

4      High Court Rules 2016, r 14.6(3)(b)(iii).

5      Rule 14.6(3)(b)(ii) and (v).

size, the reasonable expectations of the party who refuses the offer, and whether the parties were in a position to assess the merits when the offer was received.6

[13]              Ms Fielding filed her statement of claim on 23 October 2019. On 17 January 2020 Mr McIntyre’s counsel sent an offer of settlement to Ms Fielding in the amount of  $2,000.   She  rejected  the  offer  by  way  of  email  dated  29 January  2020.   Mr Abricossow also points out that after the decision was released on 4 September 2020 counsel emailed the plaintiff requesting payment of costs and disbursements on a 2B basis only. No response to this offer was received.

[14]              In my view it was unreasonable not to accept the $2,000 offer. It was made well in advance of the hearing and Ms Fielding’s claim was plainly unmeritorious. Accepting the offer would have saved the stress of continuing litigation not to mention extensive costs no doubt incurred by both parties (even if Ms Fielding was representing herself). Ms Fielding’s failure to act reasonably undoubtedly contributed to the time and expense of the proceeding.7

[15]              Generally an uplift should be no more than 50 per cent.8 Ms Fielding’s failure to accept the settlement offer as well as the 4 September 2020 compromise following judgment, justifies an uplift of 40 per cent.

[16]              Mr Abricossow has calculated costs and disbursements which are reproduced in the following table. The cost of preparing the bundle is appropriately claimed. The defendant was the applicant for the strike-out application. In this interlocutory proceeding, Ms Fielding was not the applicant.9

6      Weaver v HML Nominees [2016] NZHC 473 at [30]; and Samson v Mourant [2016] NZHC 1119 at [44].

7      See Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2010] NZCA 400, (2010) 24 NZTC 24,500 at [165].

8      Holdfast NZ Ltd v Selleys Pty Ltd (2005) 17 PRNZ 897 (CA) at [46].

9 Contrary to Ms Fielding’s understanding: see above at [4].

SCALE COSTS
Step	Item	Time allocation	Cost claimed
22	Filing interlocutory application	0.6	$1,434
10	Preparation for subsequent case management conference (22 June 2020)	0.4	$956
11	Filing memorandum for subsequent case management conference (22 June 2020)	0.4	$956
13	Appearance at subsequent case management conference (22 June 2020)	0.3	$717
24	Preparation of written submissions	1.5	$3,585
25	Preparation by applicant of bundle for hearing	0.6	$1,434
26	Appearance at hearing of defendant application (sole or principal counsel)	0.5	$1,195
TOTAL			$10,277
+ 40 per cent uplift			$14,387.80

DISBURSEMENTS
Description	Cost claimed
Interlocutory hearing fee	$640

A stay?

[17]              I am satisfied there is no basis on which to stay my costs order. As Ms Fielding submitted, in determining an application for a stay of execution the Court is to:10

… weigh all the factors in the balance between the right of a successful litigant to have the fruits of a judgment and the need to preserve the position in case the appeal is successful.

[18]              Ms Fielding’s grounds for seeking a stay are that the Court failed to give due weight to the evidence she submitted in opposing the strike-out application and she is relying on the Court of Appeal to weigh all the evidence and properly adjudicate the issue.

[19]              Ms Fielding’s appeal will not be rendered nugatory if a stay is not granted. As to the contentions concerning evidence I addressed the point in the strike-out decision:11

[12]      Both parties have filed extensive affidavit evidence. Needless to say they each offer  different accounts of the  facts.  I reminded  counsel  and  Ms Fielding that in the context of a strike-out application the Court is not able

10     Dymocks Franchise Systems (NSW) Pty Ltd v Bigola Enterprises Ltd (1999) 13 PRNZ 48 (HC) at [8].

11     Strike-out decision, above n 1.

to resolve disputed facts. Pleaded facts are assumed to be true although that principle does not extend to pleaded allegations that are entirely speculative and without foundation. Both Mr Abricossow and Ms Fielding submitted at various stages that the other party’s case and submissions were speculative. I resisted invitations by both sides to take me through the evidence.

[13]      I am, however, able to take notice of findings of fact in court decisions relating to Ms Fielding and behaviours as between her and Mr McIntyre. For example,  in  2018  Ms Fielding  faced   a   charge   of   trespassing   onto  Mr McIntyre’s property. The issue in the District Court was one of identification. Having viewed CCTV footage, the Judge was satisfied the person shown in the footage and stills was Ms Fielding. Accordingly, he found the charge proved and Ms Fielding guilty.

…

[18] This factual matrix, in tandem with the pleadings, is  sufficient to  enable me to determine the strike-out application.

[20]              Neither the strike-out nor the appeal involve novel or important questions; there is no public interest in the proceeding; and the defendant is entitled to his costs.12

Result

[21]For the reasons given, Ms Fielding is ordered to pay costs in the sum of

$14,387.80 together with disbursements of $640.

Karen Clark J

Solicitors:
Morrison Kent, Wellington for Defendant

12     These are some of the considerations regarded as relevant when considering an application for a stay: see Dymocks Franchise Systems (NSW) Pty Ltd v Todd, above n 10.