Guo v Bourke

[2016] NZHC 2976

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-002466 [2016] NZHC 2976

IN THE MATTER OF

the Property Law Act 2007, ss 313 and

323

BETWEEN

QUINGYAN GUO Applicant

AND

GARY EDWARD BOURKE AND BENJAMIN WILLIAM MCALPINE TOTHILL

Respondents

Hearing:	On the papers
Judgment:	9 December 2016

COSTS JUDGMENT OF DUFFY J

This judgment was delivered by me on 9 December 2016 at 12 pm pursuant to

Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Solicitors:

Loo & Koo, Auckland

Duncan Cotterill, Christchurch

GUO v BOURKE AND TOTHILL COSTS [2016] NZHC 2976 [9 December 2016]

[1]      The  defendants  Mr  Bourke  and  Mr  Tothill  (the  defendants)  successfully opposed the application by Ms Guo. Accordingly, they now seek costs.

[2]      Ms Guo accepts that as the successful party the defendants are entitled to an award of costs, which should be assessed on a category 2B basis.  She also accepts the defendants’ quantification of costs, which comes to $12,153.50.

[3]      Ms Guo partially accepts the defendants’ claim for disbursements.  Here she objects to them claiming the sum of $1433.80, being for counsel’s fees for travel between Christchurch and Auckland and accommodation.

[4]      The defendants seek an uplift of scale costs by 50% which represents an award of $18,230.25 and they maintain their disbursement claim for their counsel’s travel costs.    Their actual costs amount to $23,000 including GST plus disbursements.

[5]      The reasons for the proposed uplift are twofold.  First, the defendants contend that Ms Guo rejected two offers to settle the proceeding, one of which would have resulted in a better outcome than she achieved in the proceeding while the other would have given her the same outcome that was achieved in the proceedings.

[6]      Secondly, the defendants contend that Ms Guo’s conduct of the proceedings contributed unnecessarily to the cost of the proceedings.

[7]      The relevant principles for an uplift of scale costs are to be found in Holdfast NZ Ltd v Selleys Pty Ltd.1    First the scale costs are assessed then there is an assessment of whether an uplift is warranted.  Failure to accept an offer of settlement can provide a proper reason for an uplift.2     The reasonableness of the refusal is assessed at the time of the refusal and not against the subsequent result.

[8]      The first offer was made on 3 June 2015.   With this offer the defendants agreed to remove the gates at the part of the wall that intruded on the right of way if

1         Holdfast NZ Ltd v Selleys Pty Ltd (2005) 17 PRNZ 897 (CA).

2            See r 14.6(3)(b) of the High Court Rules 2016.

Ms Guo agreed to removal of impediments on right of way B.   The offer was to reinstate the right of ways to their legal unimpeded character.

[9]      The second offer was made on 10 June 2016, which was close to the hearing date, and offered Ms Guo a route so she could access beyond the gates.

[10]     I consider Mrs Guo’s refusal of the first offer was unreasonable.  The offer provided a sensible solution to the problem.  Ms Guo was legally represented and so the merit of the offer could be assessed against the merits of her case.

[11]     The second offer was made too close to the hearing to merit any uplift in costs.

[12]     I acknowledge that Ms Guo strenuously fought her case.  However, this does not equate to acting unreasonably.  Indeed at the first hearing when the defendants were  not  legally  represented,  Ms  Guo  acted  very  reasonably in  agreeing  to  an adjournment to allow the defendants to obtain legal representation.  Her conduct of this proceeding needs to be assessed in the round.

[13]     The defendants have established only one ground for an uplift of costs.  This achievement is not enough to warrant the level of uplift that they seek.  I consider that an uplift of 20% is sufficient to recognise Ms Guo’s unreasonable refusal to accept the first settlement offer.   Accordingly, the costs award of $12,153.50 is increased by 20%.

[14]     I consider that the defendants are entitled to recover their counsel’s travel and accommodation costs.   In this regard I accept their explanation for instructing Christchurch based solicitors.

Result

[15]     The defendants  are  entitled  to  costs  of $14,584.20  and  disbursements  of

$1,593.80.