Gillanders v Mason

[2013] NZHC 649

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV2012-488-000389 [2013] NZHC 649

BETWEEN  WILLIAM STEVEN GILLANDERS Appellant

ANDMICHAEL GLEN MASON Respondent

On the papers

Date:              27 March 2013

COSTS JUDGMENT OF GILBERT J

This judgment was delivered by me on 27 March 2013 at 4.15pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………….

Counsel:            G S A Macdonald, Auckland: [email protected]

Copy to:            W S Gillanders, 18 Butler Rd, Kerikeri:  [email protected]

GILLANDERS V MASON HC WHA CIV 2012-488-000389 [27 March 2013]

[1]      In a judgment dated 1 March 2013, I dismissed Mr Gillanders’ appeal from Judge de Ridder’s decision dismissing his claim against Mr Mason in negligence. Mr Mason now seeks costs on the appeal.

[2]      This was a straightforward appeal which Heath J categorised as Category 2. There appears to be no dispute that Band B is appropriate for all steps.  Normally, costs would follow the event on a 2B basis.  However, Mr Mason seeks increased costs pursuant to r 14.6(3)(b)(i), (ii) and (d) which provide:

(3)      The court may order a party to pay increased costs if –

…

(b)      the party opposing costs has contributed unnecessarily to the time or expense of the proceeding or step in it by –

(i)       failing to comply with these rules or with a direction of the court; or

(ii)      taking or pursuing an unnecessary step or an argument that lacks merit;

…

…

(d)      some other reason exists which justifies the court making an order for increased costs despite the principle that the determination of costs should be predictable and

expeditious.

Did Mr Gillanders contribute unnecessarily to the time or expense of the appeal by failing to follow the court’s directions?

[3]      Heath J made directions for the hearing of the appeal at a conference on

8 August 2012.  Difficulties were encountered regarding preparation of the common

bundle,  which  was  primarily  Mr  Gillanders’  responsibility.     As  a  result,  on

26 September 2012, Heath J vacated the original hearing date for the appeal and made  further  timetable  directions.     He  declined  to  apportion  blame  for  the non-compliance with his original timetable directions.  The judge also directed that a case management conference be held on 14 November 2012.   Rodney Hansen J

made further directions at this case management conference and the appeal duly proceeded before me on 26 February 2013.

[4]      Mr Macdonald, for Mr Mason, submits that Mr Gillanders failed to comply with the Court’s directions and that this justifies an award of increased costs.   In particular, he submits:

(a)      the  case  management  conference  on  14  November  2012,  which involved a four hour return car trip for Mr Mason’s counsel, was only required because of Mr Gillanders’ failure to comply with the Court’s directions regarding preparation of the common bundle for the appeal;

(b)Mr Gillanders did not prepare the common bundle as would normally be expected by him as the appellant; and

(c)      Mr Gillanders did not agree to Mr Mason preparing the common bundle until shortly before the conference on 14 November 2012.

[5]      In  effect,  Mr  Macdonald’s  submission  is  that  Mr  Gillanders  should  pay increased costs for all steps involved in the appeal because he did not complete the common bundle within the time originally ordered.  Given that Heath J, who dealt with the matter at the time, was not prepared to apportion blame for the difficulties that arose regarding preparation of the common bundle, it seems to me that it would be inappropriate for me to do so now.  Even if Mr Gillanders was to blame for not completing the common bundle in accordance with the original timetable, this could not justify an award of increased costs for all steps taken in relation to the appeal.

[6]      Although Mr Gillanders would normally have prepared the common bundle, Mr Mason  is  adequately  compensated  by  an  award  of  2B costs  for  this  step. Similarly, although the case management conference on 14 November 2012 would not ordinarily have been required, Mr Mason is entitled to the costs involved in preparing for and attending that conference.

[7]      Mr Mason’s claim for increased costs based on Mr Gillanders’ alleged failure

to comply with the timetable for completing the common bundle is declined.

Did Mr Gillanders contribute unnecessarily to the time or expense of the appeal by taking an unnecessary step or pursuing an argument that lacked merit?

[8]      Mr Gillanders’ sought damages in the District Court to compensate him for the destruction of his house by fire.  He alleged that Mr Mason caused the fire by negligently installing various components of stereo equipment.  The judge rejected Mr Gillanders’ claim finding that Mr Mason was not negligent and, in any event, Mr Gillanders had not proved that any negligence on Mr Mason’s part had caused the fire.

[9]      Mr Gillanders challenged these findings on appeal.   At the hearing of the appeal, he refined his argument and abandoned his challenge to the judge’s findings in respect of some of the stereo components.  Mr Macdonald submits that as a result of Mr Gillanders’ late abandonment of these aspects of his appeal, Mr Mason was put to unnecessary cost in having to prepare submissions dealing with all issues relevant to breach and causation.

[10]     Mr Gillanders was entitled to challenge all aspects of the judge’s decision. All potential causes of the fire had to be considered in dealing with his claim and the appeal because they were all relevant, at least to the issue of causation.   I do not consider that Mr Gillanders should be penalised for sensibly confining his argument regarding negligence at the hearing of the appeal.  I do not accept Mr Macdonald’s submission that Mr Gillanders unnecessarily added to the length or complexity of the proceeding or pursued arguments lacking in merit.

Should  Mr Gillanders  have  to  pay  increased  costs  because  of  vexatious  or frivolous behaviour?

[11]     Mr Mason seeks increased costs under r 14.6(3)(d) on the basis that “some other reason exists” which justifies this.  Mr Macdonald states that Mr Gillanders has sent numerous emails to Mr Mason’s solicitors arguing the merits of the appeal,

alleging dishonesty and deceit by Mr Mason and his legal advisers, and threatening the commencement of criminal proceedings and complaints to the Law Society. This correspondence could give rise to further court proceedings.  However, I do not have copies of the emails and am unable to take them into account in assessing the costs that ought to be paid in connection with the appeal.

Result

[12]     Mr Mason’s application for increased costs is declined.

[13]     Mr Gillanders is to pay costs to Mr Mason assessed on a 2B basis in the sum

of $17,611.50 as calculated in the schedule attached to Mr Macdonald’s submissions.

M A Gilbert J