Haden v Wells - [2013] NZHC 2946

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2013-404-003712 [2013] NZHC 2946

BETWEEN GRACE HADEN Appellant

ANDNEIL EDWARD WELLS First Respondent

ANDWINIFRED NORIEN HOADLEY Second Respondent

ANDGRAEME JOHN COUTTS Third Respondent

On the papers

Judgment: 7 November 2013

JUDGMENT OF GILBERT J

This judgment was delivered by me on 8 November 2013 at 12.00 pm
Pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:………………

GRACE HADEN v NEIL EDWARD WELLS [2013] NZHC 2946 [7 November 2013]

[1] Ms Haden appeals against a costs judgment given by Judge B A Gibson in the District Court at Auckland on 24 June 2013.1 The Judge awarded indemnity costs against her, having struck out her claim against the respondents on the basis that it was vexatious, an abuse of the process of the Court and amounted to a collateral attack on an earlier judgment of the Court.2 The total costs awarded amounted to $15,468.65 plus disbursements of $603.

[2] Ms Haden appealed against Judge Gibson’s substantive judgment striking out her claim. That appeal was dismissed by Brewer J in a judgment delivered on
22 October 2013.3 At the conclusion of the hearing of that appeal, Brewer J made

directions for the disposal of the present costs appeal on the basis that it would be dealt with on the papers following the filing and service of submissions. These submissions have now been filed. The file has been referred to me to deal with as Duty Judge.

Grounds of appeal

[3] Ms Haden raises the following grounds in support of her appeal. She claims that the Judge erred by:

(a) ordering her to pay indemnity costs;

(b)directing her to pay costs that were invoiced by the respondents’ solicitors to Animal Welfare Institute of New Zealand (AWINZ) rather than to the respondents;

(c) directing her to pay costs for attendances unrelated to the proceeding;

and

(d) directing her to pay amounts shown on invoices that were not correct.

1 Haden & Anor v Wells & Ors DC Auckland CIV-2012-004-000696, 24 June 2013.
2 Haden & Anor v Wells & Ors DC Auckland CIV-2012-004-000696, 10 May 2013.
3 Haden v Wells & Ors [2013] NZHC 2753.

[4] An award of costs involves the exercise of a discretion. To successfully appeal such a decision an appellant must show that the Judge made an error of law or principle, took into account irrelevant considerations, failed to take into account relevant considerations or was plainly wrong.

Did the Judge err in awarding indemnity costs?

[5] The Judge relied on r 4.6.4(a) of the District Courts Rules 2009 which empowers the Court to award indemnity costs if:

(a) the party has acted vexatiously, frivolously, improperly, or
unnecessarily in commencing… a proceeding…

[6] Having found that Ms Haden’s claim was vexatious and an abuse of the process of the Court, the Judge considered that r 4.6.4(a) applied. That was correct.

[7] Ms Haden acknowledges in her submissions that an indemnity costs award can be made if the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Haden v Wells

Details

AGLC: Haden v Wells [2013] NZHC 2946
Case: [2013] NZHC 2946
Decision Date: 7 November 2013

CaseChat Overview and Summary

Ms Haden appealed against a costs judgment given by Judge B A Gibson in the District Court at Auckland on 24 June 2013. The Judge had awarded indemnity costs against her, having struck out her claim against the respondents on the basis that it was vexatious, an abuse of the process of the Court and amounted to a collateral attack on an earlier judgment of the Court. The total costs awarded amounted to $15,468.65 plus disbursements of $603.

Ms Haden raises the following grounds in support of her appeal. She claims that the Judge erred by: ordering her to pay indemnity costs; directing her to pay costs that were invoiced by the respondents' solicitors to Animal Welfare Institute of New Zealand rather than to the respondents; directing her to pay costs for attendances unrelated to the proceeding; and directing her to pay amounts shown on invoices that were not correct.

In awarding costs, the Judge relied on rule 4.6.4(a) of the District Court Rules 2009 which empowers the Court to award indemnity costs if the party has acted vexatiously, frivolously, improperly or unnecessarily in commencing a proceeding. Having found that Ms Haden's claim was vexatious and an abuse of the process of the Court, the Judge considered that r 4.6.4(a) applied. Ms Haden acknowledged that an indemnity costs award can be made if the Court determines that the action was "hopeless". If Judge Gibson was correct in finding that her claim was vexatious and an abuse of process, it would necessarily follow that it was hopeless. Ms Haden's appeal could only have succeeded if her appeal from Judge Gibson's substantive decision had also succeeded, which it did not.

The invoices sent by the respondents' solicitors were addressed to Animal Welfare Institute of New Zealand, care of Mr Wells, rather than to the respondents. Ms Haden submitted that it was pure speculation as to who the client was and what the purpose of the work was. However, the invoices were headed "Grace Haden" and a schedule itemising the attendances was sent with each invoice. These matters are clearly set out in the billing records and invoices provided by the solicitors. The respondents were jointly and severally liable for any costs incurred by the solicitors in representing them in the proceedings at their request. In any event, at all relevant times the respondents were trustees of Animal Welfare Institute of New Zealand and were therefore personally liable, jointly and severally, for any costs incurred by the Trust.

Ms Haden's next point was that the invoices cover attendances relating to other proceedings, including bankruptcy and liquidation proceedings in the High Court. This was not correct. The solicitors extracted from their time records those attendances that related to Ms Haden's claim in the District Court for which indemnity costs were sought. The costs claimed from Ms Haden were included within the attendances covered by four invoices. The total fees and disbursements charged to the respondents in these invoices amounted to $94,860.48. The total amount which Ms Haden was ordered to pay was $16,071.65. The solicitors extracted the relevant attendances from the overall billing records, and detailed the particular attendances claimed from Ms Haden. It was clear from this summary that the relevant attendances related solely to her claim in the District Court.

Ms Haden was correct that the subtotals in the summary did not add up to the amount claimed of $13,451. The correct total was $13,448 and she had therefore been overcharged by $3.00 plus GST. This amount was inconsequential.

Ms Haden has failed to demonstrate that the Judge made any appealable error that would justify this Court interfering with his exercise of discretion in making his costs order. The appeal is dismissed. The respondents are entitled to costs on a Category 2, Band A basis.

Orders