Hayes v Parlane

[2015] NZHC 112

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV-2013-488-000269 [2015] NZHC 112

UNDER

the Declaratory Judgments Act 1908 and

Part 18 of the High Court Rules

BETWEEN

KELLY SUZANNE HAYES and ANDREW NATHANIEL HAYES as the Executors and Trustees of the Estate of MARLENE RUTH KEEYS

Plaintiffs

AND

DOUGLAS FREDERICK PARLANE Defendant

Hearing:	17 February 2015 [On the Papers]
Counsel:	J G Ross for the Plaintiffs
Judgment:	17 February 2015

JUDGMENT OF DUFFY J [Re Costs]

This judgment was delivered by Justice Duffy on 17 February 2015 at 2.00 pm, pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Counsel:     J G Ross, Whangarei

Copies To:   Swanlaw (G P Swanepoel), Whangarei

Titirangi Law Centre (R D Ganda), Auckland

HAYES v PARLANE [2015] NZHC 112 [17 February 2015]

[1]      The  plaintiffs  seek  costs  in  relation  to  the  judgment  that  I delivered  on

3 October 2014.1  This matter proceeded by way of formal proof.

[2]      In a Minute dated 21 November 2014, (“the Minute”), I made directions for service of the costs application on the defendant.  The reasons for those directions are set out in the Minute.

[3]      The   plaintiffs   have   filed   an   affidavit   of   service   of   Renee   Allen, legal secretary, of Whangarei.  The affidavit makes it clear that the plaintiffs have taken the further steps to effect service that I directed them to take in the Minute. The defendant has taken no steps to oppose an award of costs being made against him.   I am satisfied, therefore, that it is appropriate for me to deal with the costs application.

[4]      The general principle is that costs follow the event.  There is no reason here why the general principle should not be applied.  I am satisfied that the plaintiffs are entitled to costs as set out in their schedule at category 2B.  This comes to the sum of

$37,611.

[5] defen	Ho dant: (a)	wever, the plaintiffs seek an uplift of 20 per cent.   This is because the failed to comply with timetable directions and High Court Rules for
filing his evidence;
(b)	pursued an argument that lacked merit concerning the duration of the
de facto relationship that was in issue;
(c)	failed without reasonable justification to accept an offer of settlement,
and was on notice that the plaintiffs would be seeking solicitor/client costs; and

1      Hayes v Parlane [2014] NZHC 2416.

(d)made it very difficult for the plaintiffs to evaluate the merit of his claims until the very last moment, and to weigh up the matter of settlement, due to his failure to file evidence in a timely way.

[6]      The plaintiffs say they have incurred significant actual legal costs in pursuing the proceeding.  Total costs are said to come to $78,790.24, with disbursements of

$6,055.17 and witness fees of $300, making a total of $85,145.41.

[7]      When  actual  costs  are  compared  against  the  recoverable  costs  under category 2B, the plaintiffs contend that the shortcomings of the defendant that they have identified warrant an award of increased costs.  The 20 per cent uplift of the scale costs that they seek would bring the costs award, including disbursements and witness fees, to $51,488.

[8]      Rule 14.6(1)(a) allows for an award of increased costs.   The grounds for awarding increased costs are set out at r 14.6(3)(b).  The approach to be taken in making an award of increased costs is set out in Holdfast NZ Ltd v Selleys Pty Ltd.2

[9]      I have considered the plaintiffs’ application in terms of the approach set out in Holdfast.  I am satisfied that the grounds the plaintiffs have identified warrant an uplift of costs.  Their first three grounds fit within r 14.6(3)(b)(i)-(ii) and (iv)-(v). Their fourth ground also supports an award of increased costs.

[10]    I am also satisfied that the disbursements claim of $6,055.17 and witness expenses of $300 are reasonable.

Result

[11]    The plaintiffs are awarded costs in the sum of $51,488, which includes disbursements of $6,055.17 and witness fees of $300.

Duffy J

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