Haines v Memelink

[2020] NZHC 188

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2018-485-962

[2020] NZHC 188

BETWEEN

QUENTIN STOBART HAINES

First Applicant

AND

BPE TRUSTEES (NO. 1) LIMITED

Second Applicant

AND

HARRY MEMELINK

First Respondent

AND

LYNX TRUSTEES LIMITED

Second Respondent

Hearing:

On the papers

Counsel:

F E Geiringer for Applicant First Respondent in Person

M L Clarke-Parker for Second Respondents (excused) P R W Chisnall for Official Assignee (excused)

Judgment:

17 February 2020

JUDGMENT OF GRICE J

(Costs)

[1]        I awarded costs in favour of Mr Memelink (a litigant in person) on the discontinuance of the proceedings by the applicants.

[2]        Mr Memelink opposed the application for discontinuance and also sought costs in the event that the application for discontinuance was successful. I granted leave to discontinue the proceedings.1

1      Haines v Memelink [2019] NZHC 2802.

HAINES v MEMELINK [2020] NZHC 188 [17 February 2020]

[3]        Mr Memelink’s application for costs was opposed on the basis he was a litigant in person. My judgment went  into  some  detail  on  that  issue.  I  concluded  that Mr Memelink was entitled to claim his actual and reasonable disbursements.2 I requested that Mr Memelink file an itemised schedule and supporting receipts or other “written proof of the incurring of each of the disbursements and of the nature of the services provided (in detail in the case if any claim for legal expenses as outlined above)” for his claims.3

[4]        Mr Memelink claimed he had incurred fees with a legal firm in the preparation of his documents for these proceedings. I said:4

[66]  … the involvement of the law firm Holland Beckett is obscure.  It is  not  apparent  how  that  firm  has  been  involved  in  these  proceedings.  Mr Memelink personally has filed a number of memoranda since the granting of the interim injunction but these were largely by way of updating and were not generally of assistance in progressing the proceeding.

[5]        Following my judgment allowing the discontinuance Mr Haines applied for costs on the successful application.

[6]        Mr Memelink’s claim set out in his memorandum dated 12 November 2019 totalled $14,631.11.

[7]        The criticisms made of Mr Memelink’s claim fall under a number of heads as follows:

(a)Legal advice cost. The invoice of Holland Beckett contained no specific reference to legal assistance in these proceedings except for relating to the incorrect sealing of the interlocutory order. Mr Haines said this was not a step in the substantive proceedings and in any event is now subject to an application for recall. Mr Haines does not allow for any claim for the Holland Beckett lawyers costs.

2      Haines v Memelink [2019] NZHC 2802 [31 October 2019] at [67].

3      Haines v Memelink [2019] NZHC 2802 [31 October 2019] at [67].

4      Haines v Memelink [2019] NZHC 2802 [31 October 2019] at [66].

(b)Reader/writer. Mr Memelink says he has difficulties reading and writing. He has therefore used one of the trustees and his brother-in- law, Mr Bassett-Burr who is an accountant as his reader/writer and claimed for the cost of that service. Mr Memelink claims a total of

$6,900. Mr Haines says he is not entitled to anything.

(c)Carparking and travel. These  are accepted in principle.  However,  Mr Haines adjusted the claim because the matter was only called in the chambers list on 5 and 19 August 2019 therefore the claim should be of

$51.07 (travel) and carparking of $14.

(d)Other adjustments to Mr Memelink’s figures including:

(i)An adjustment from $4,780 to $3,585. Legal costs for representation beginning of the proceedings by Mr Manktelow. The  schedule  of  costs  and   disbursements   provided   by  Mr Memelink claims two days, whereas Mr Haines said it should be 1.5 days. This accounts for a difference of $1,305.

(ii)A half share of the costs claimed by Mr Memelink for the purchase of a printer/scanner (claim of $174.50). A blank black ink cartridge ($64.19), a colour ink cartridge pack ($101.78) and photocopy paper of $45.00. Mr Haines says these are not appropriate claims.

[8]        In my view a holistic approach should be taken to this matter. In the whole Mr Memelink should be allowed costs in the region of $1,500.5 This takes into account:

(a)Mr Bassett Burr was involved in the proceedings in his personal capacity as a trustee and he had to respond to the claim himself. He is not a qualified reader/writer. I consider allowing a claim under this head is inappropriate. It amounts to a claim for assistance in the

5      In addition to the legal costs he was awarded.

proceeding by a non-lawyer. While in some situations this may be appropriate, it was not here.

(b)Mr Memelink has claimed for disbursements for printer/scanner and photocopy and consumables. I consider he is entitled to a reimbursement for his costs which would have had to be incurred for printing and photocopying and other office costs. As Mr Memelink is litigant in person I consider he is entitled to an allowance for those. I allow him $500 under that head. This would include miscellaneous office supplies.

(c)I also allow Mr Memelink the full cost of his travel and parking. While there has been some criticism of those claims they are minor. I consider Mr Memelink’s claims and supporting evidence are sufficient to support his claim in that regard.

(d)I allow Mr Memelink’s claim for legal advice from Holland Beckett to the extent of $500. I made it clear I would need an itemised list of the Holland Beckett attendances itemised in a sufficient detail to show exactly what the firm had done in this proceeding. That was not filed. Nevertheless, there is some material suggesting he did consult them in relation to at least the sealed orders. Therefore, this is merely in recognition of the fact he must have discussed the claim with a lawyer from the firm.

[9]Accordingly in relation to the contested claims by Mr Memelink I allow:

filing fee	$110.00
parking	$42.00
travel	$153.22
filing fee statement of defence	$110.00
as above in [7]	$500.00
as above – legal fee [7]	$500.00
Total	$1,415.22

[10]      Turning to Mr Haines’ claim for costs. The total claim is for $8,126 and has been prepared according to the High Court Rules category 2 band B.

[11]      Mr Memelink’s criticism of the costs claim is based on the fact that he is not convinced that the costs have actually been incurred. However, counsel for Mr Haines is aware of the requirement that costs not exceed actual legal costs. I see no reason to go behind Mr Mahuta-Coyle’s memorandum in that regard. Counsel was reminded by the Justice Churchman of this requirement earlier in these proceedings.6 There is no criticism of the arithmetic in Mr Haines’ claim.

[12]      Rule 15.23 of the High Court Rules provides that unless the defendant agrees or the court orders a plaintiff who discontinues must pay costs up to and including the discontinuance.7 Mr Haines submits he was the successful applicant in an opposed notice to discontinue so there is no reason that he not be awarded costs as usual. The claim would amount to $8,126 in favour the applicants jointly. It is a matter for the court as to whether the presumption that the discontinuing party pays costs is not to apply.

[13]      Mr Mahuta-Coyle suggested in the circumstances that cost claims balance each other up and no award as to costs be made.

[14]      In my view given the figures involved and taking a holistic view I consider that no costs should be awarded to Mr Haines. There is no reason that the prima facie position that costs are awarded in favour of the defendant should not apply. The level of costs I have allowed to Mr Memelink is relatively low and in the circumstances he should be allowed that modest amount of costs.

[15]      Accordingly, I am of the view that no costs should be awarded to Mr Haines on the application for discontinuance and that the reasonable disbursements estimated and allowed above be awarded to Mr Memelink on the discontinuance.

6      Haines v Memelink Minute of Churchman J, 5 August 2019.

7      High Court Rules 2016, r 15.23.

[16]      When I refer to Mr Haines and Mr Memelink I am referring to each the applicants jointly and severally and the respondents jointly and severally.

[17]Accordingly, Mr Haines’ application for costs is dismissed.

[18]      Mr Memelink is awarded costs and disbursements in the total sum of $1,415.22 as set out in [9] above together with costs on a 2B basis as claimed for the preparation of the statement of defence as noted in my earlier judgment.8

Grice J

8      Haines v Memelink [2019] NZHC 2802 at [68].