Grey District Council v Banks

IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY

CIV-2012-418-000005 [2013] NZHC 2304

UNDER

the Property Law Act 2007

BETWEEN

GREY DISTRICT COUNCIL

Applicant

AND

DOUGLAS BANKS

First Respondent

CHRISTINE SANDRA BANKS
Second Respondent

Hearing:	3 September 2013 (On the papers)
Appearances:	J Shackleton and D M Miller for the Applicant C S Banks in Person on behalf of Respondents
Judgment:	5 September 2013

JUDGMENT (2) OF FOGARTY J

Introduction

[1]   It was the judgment of this Court on 19 June 2013 that the respondents, Mr and Mrs Banks, are parties to a valid lease and so are liable for the payment of their rent arrears.  Costs were reserved.

[2] Mr and Mrs Banks have paid the  outstanding  arrears.  The  successful applicant now seeks costs according to scale 2 with a 10% uplift, together with disbursements; and certification for second counsel.

[3] The argument follows upon the usual rule, that the party who fails should pay costs to the party who succeeds.1

1       High Court Rules, r 14.2(a).

GREY DISTRICT COUNCIL v DOUGLAS BANKS [2013] NZHC 2304 [5 September 2013]

[4]    The successful party seeks costs primarily on a 2B basis (as is normal), but on a 2C basis for preparation of discovery and the bundle of documents. A total of 20.9 days at $1,990 = $41,591.

[5]     As to discovery, this is because the Court made orders directing the Council to provide discovery of certain documents at the request of Mrs Banks, making the exercise of discovery take far more time than is allowed for in Band B, and in fact exceeding the time allowed for in Band C.

[6] As to the bundle, it is submitted the time spent preparing bundles for the hearing was unnecessarily exacerbated by reason of voluminous affidavit evidence filed by Mr and Mrs Banks, many parts of which were ultimately ruled inadmissible, and time spent at Archives New Zealand to locate the map referred to in s 24 of the Reserves and Other Lands Disposal and Public Bodies Empowering Act 1911, which Mr and Mrs Banks relied upon at the hearing, ultimately unsuccessfully. Mr and Mrs Banks could have sourced the map themselves.

[7]      Finally, the successful party also seeks a 10% overall uplift, pursuant to r 14.6, on the grounds that Mr and Mrs Banks contributed unnecessarily to the time and expense of the proceedings. In particular it relies on four matters: the application for further discovery on 17 May 2012; the issue as to whether or not a forensic report challenging the authenticity of a document dated September 1979 should be admitted and, if so, on what basis (subsequently abandoned); thirdly, that the Council’s submissions addressed grounds of opposition (which were subsequently abandoned), of mistake and estoppel; fourthly, wasted costs preparing submissions to the Court on the inadmissibility of large parts of their evidence, and also unnecessarily preparing for cross-examination.

[8]      This brings total costs sought to $45,750.

[9] It seeks disbursements in the sum of $13,758.22 for travel to two…