Graham v Graham

[2015] NZHC 2285

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2006-409-002481 [2015] NZHC 2285

IN THE MATTER	the Estate of Marjorie Elizabeth Graham
BETWEEN	ELIZABETH JEAN GRAHAM Plaintiff
AND	LEWIS ALEXANDER GRAHAM Defendant

Hearing:	On the papers
Appearances:	D P Dravitzki for Plaintiff C D Eason for Defendant
Judgment:	21 September 2015

JUDGMENT OF DUNNINGHAM J (RE:  COSTS DECISION)

[1]      On 7 July 2015, I dismissed the defendant’s claim to a beneficial interest in three sections located at Little River on Banks Peninsula, and which comprised part of his late mother’s estate.

[2]      While I indicated at the conclusion of my judgment that 2B costs seemed appropriate, I reserved the issue of costs to be dealt with by way of memoranda if they could not be agreed.

[3]      Timetabling directions were subsequently made for the exchange of costs memoranda.  I have received a memorandum on costs from counsel for the plaintiff but,  although  the  defendant’s  memoranda  was  due  on  28 August  2015,  I  have received no response from him.   I therefore make the following decision in the

absence of any submissions from him on costs.

GRAHAM v GRAHAM [2015] NZHC 2285 [21 September 2015]

Relevant principles

[4]      The applicable principles applying to costs are set out at part 14 of the High Court Rules.   While all matters relating to costs are at the discretion of the Court,  it  is  accepted  that  the  exercise  of  the  discretion  will  be  guided  by  the principles set out in r 14.2, including the following which are of particular relevance in this case:

(a)       the party who fails with respect to a proceeding should pay costs to the party who succeeds;

(b)       costs should be assessed by applying the appropriate daily recovery rate to the time considered reasonable for each step reasonably required in relation to the proceeding; and

(c)       so far as possible the determination of costs should be predictable and expeditious.

[5]      There are circumstances which will warrant an increase or decrease in the costs to be awarded, but no circumstances have been identified in the present case which would warrant an uplift, or a reduction, in the award of costs.  Instead I am satisfied that these were proceedings of average complexity, requiring counsel of skill and experience considered average in the High Court, and which involved a normal amount of time. Accordingly, recovery of costs on a 2B basis is appropriate.

[6]      The only complicating factor in this case is that the present proceedings were not brought by the plaintiff but were initiated by the Public Trust making an interlocutory application on 4 July 2014, seeking orders barring the claim of the defendant pursuant to s 75, Trustee Act 1956.  When this step was taken, it prompted a notice of opposition from the defendant and, his application for an extension of time to bring his claim and his substantive claim.   At that point, as the plaintiff observes, she became the party which took up “the burden of opposing Mr Graham’s argument” as the Public Trust was excused from the hearing as, at that point, it abided the decision of the Court.

[7]      While the plaintiff did not file the notice of opposition to Mr Graham’s cross application,  she  was  required  to  file  an  extensive  affidavit,  and  to  prepare submissions for the hearing.  She therefore seeks 2B costs for steps 23, 24 and 26

listed in schedule 3 of the High Court Rules.   The time allocation for those three steps is 2.85 days and, at a daily recovery rate of $1,990 per day, the costs she seeks total $5,671.50.

[8]      I  am  satisfied  that  the  .6  of  a  day allocation  for  the  preparation  of  her opposition to the interlocutory application is reasonable, particularly as it is clear that preparation  of  the  affidavit  would  have  been  time  consuming.     By  way  of comparison, I note that the time allocation for filing a notice of opposition and supporting affidavits in an originating application (which this hearing was analogous to) is two days.

[9]      Accordingly, I make an order for costs in favour of the plaintiff on a 2B basis, totalling $5,671.50.

Solicitors:

Malley & Co., Christchurch

C D Eason, Barrister, Christchurch