Hayes v Parlane
[2015] NZHC 112
•17 February 2015
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).
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