Gonsalves v Williams

[2014] NZHC 3352

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-004993 [2014] NZHC 3352

BETWEEN

MICHELLE NOLA GONSALVES

Applicant

AND

PETER LESLIE WILLIAMS Respondent

Hearing:	(On the papers)
Counsel:	James Jackson for the Applicant Gregory Presland and David Smyth for the Respondent
Judgment:	19 December 2014

RESERVED JUDGMENT OF MOORE J [Costs]

This judgment was delivered by  on 19 December 2014 at 4:00pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Date:

GONSALVES v WILLIAMS [2014] NZHC 3352 [19 December 2014]

Introduction

[1]      I delivered a judgment on the 30 September 2014 on an application under s 339(1) of the Property Law Act 2007 for an order to sell a property and share the proceeds between the co-owners.  I made an order in favour of the applicant.

[2]      This judgment deals with the costs flowing from that order.

Background

[3]      In my judgment I ordered that a joint memorandum be filed as to costs. Counsel were unable to agree and on the 17 October 2014 the applicant filed a memorandum of costs. Due to circumstances beyond the control of counsel for the respondent, the respondent’s memorandum on costs was not filed until 8 December

2014.

[4]      Mr Presland, for the respondent, takes issue with several of the items claimed

in the applicant’s cost memorandum.

[5]      A memorandum of response by him was filed on the 16 December 2014 addressing these concerns.

Application

[6]      It is not disputed that the appropriate cost classification is 2B.   However, Mr Presland raises the following issues:

(a)      The schedule does not provide for reply affidavits. The applicant has claimed 1.2 days for three reply affidavits (two witness affidavits, and one reply affidavit of the applicant). The sole supporting affidavit did not address all the matters which were plainly in issue and required to be supplemented. Thus the claim for 1.2 days should be refused.

(b)The applicant claims .8 of a day for a reply.  There were no pleadings nor was such a document filed.

(c)      The applicant produced an unpaginated documentary bundle contrary to the rules.   Consequently, the respondent produced one which complied with the rules.   Mr Presland submits the applicant should not be able to claim costs for producing the compliant bundle.

(d)The applicant claims three days for hearing preparation.  However, the relevant provision applies only to hearings and not originating applications.

(e)      The claim for second counsel should not be permitted. Second counsel was  not  necessary and  Mr Schlooz  was  introduced  only as  being necessary to adduce the respondent’s evidence.

(f)      Three days for additional written submissions is a repeat of the written submissions already claimed and in any event is wholly unreasonable.

[7]      I will address each of these claims individually.

Item 37 – Further affidavits

[8]      Item  37  provides  for  “filing  application  and  supporting  affidavits”,  and allocates two days for a category B proceeding.   The applicant has claimed an additional 1.2 days for the filing of four additional affidavits.  All these affidavits were in support of the application.  I am satisfied they fall within item 37 and should not be the subject of an additional award.

Item 3 – Reply

[9]      The applicant’s claim costs for a reply.  Mr Presland submits that no pleading or such a document was filed. The applicant argues that this item covers the reply affidavit that was filed.

[10]     It is inappropriate to resort to items outside items 37-43 which deal with originating applications.  However, there is no specific item for reply evidence, most likely because in the majority of cases reply evidence would be modest.  I accept,

however, that in this case it is appropriate to determine a reasonable time by analogy to reflect the comprehensive reply affidavit. Thus I will allow the allocation of 0.8 as claimed by the applicant.

Item 41 – Production of bundle

[11]     The applicant produced a bundle for the hearing which was non-compliant with the rules because it was unpaginated. As a result the respondent produced a compliant bundle. The applicant now seeks the allocated 0.6 of a day for the production  of  the  bundle.  The  respondent  argues  that  as  they  were  required  to produce the bundle this item should not be permitted to be included in the costs claimed. The applicant accepts this item should be reduced, and suggests a reduction to 0.4 of a day.

[12]     I accept that a reduction to 0.4 of a day is appropriate and reflects the effort invested by the respondent to assist the Court.

Item 33 – Preparation for hearing

[13]     The applicant claims three days for preparation for hearing under item 33. As already mentioned I do not believe item 33 is appropriate for attendances which relate   to   general   trial   preparation   and   appearance,   rather   than   originating applications. An examination of the items listed under originating applications makes it clear it is intended that the hearing preparation time is included in the preparation of the written submissions.

Item 35 – Second counsel

[14]     The  applicant  claims  the  costs  of  second  counsel  under  item  35.  The respondent submits that this should not be allowed as the case was not one which called the engagement of second counsel. The applicant argues that the respondent’s trial counsel, Mr Smyth, gave his approval for the appearance of second counsel at the outset of the hearing without a proviso regarding costs.

[15]     I accept the respondent’s submission that this was not a case requiring second counsel.  While it was always open to the applicant to engage second counsel I do

not accept second counsel’s costs should be met by an order of this Court.   The nature of the case did not deserve it.

Item 40 – Additional submissions

[16]     The applicant claims three days for the additional submissions filed after the hearing.   This includes the original additional submissions and the additional submissions in reply. The respondent argues that this item has already been claimed and, in any event, it is wholly unreasonable. The applicant submits that the submissions were filed on the direction of the Judge.

[17]     In  my opinion  the  applicant  is  entitled  to  claim  costs  for  the  additional submissions.  However,  I accept  that  three  days  for  both  sets  of  submissions  is excessive.  As a result I allocate 1.5 days for the first set of submission, and 0.5 for the reply.

Item 28 – Obtaining judgment without appearance

[18]     The applicant seeks costs for obtaining the judgment without appearance. It is acknowledged that the judgment was provided after the hearing but the applicant submits that they expended significant time in obtaining it given the monitoring and delay associated with the orders for sale.

[19]     I agree that some allowance of this time is appropriate and allow the 0.3 day allocation.

Conclusion

[20]     I remove the following items from the cost schedule filed by the applicant:

(a)       Item  36:     the  four  items  relating  to  prepping  and  filing  witness affidavits, a total of 1.2 days;

(b)      Item 33:  preparation for hearing, a total of 3 days; and

(c)       Item 35:  Second counsel, a total of 0.5 of a day.

[21]     I allow, but reduce, the following items:

(a)       Item 41:  Preparation of bundle for hearing, reduced to 0.4 of a day;

and

(b)Item  40:     Preparation  of  submissions  in  response  to  additional submissions, reduced to 0.5 of a day.

[22]     The balance of the items listed in the applicant’s cost schedule remain.

[23]     To this total must be added the disbursements as claimed by the applicant.

Moore J

Solicitors:

Mr Jackson, Auckland

Mr Presland, Auckland
Mr Smyth, Auckland