Hemara v Lowe
[2023] NZHC 1834
•13 July 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2022-404-10
[2023] NZHC 1834
BETWEEN JOHN SHANE HEMARA
Plaintiff
AND
KELLEE LOUISE LOWE
Defendant
Hearing: On the papers Appearances:
S A Grant for the Plaintiff
No memorandum filed by the Defendant
Judgment:
13 July 2023
JUDGMENT OF ASSOCIATE JUDGE SUSSOCK
[Costs]
This judgment was delivered by me on 13 July 2023 at 4 pm pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors/Counsel:
Mathews & Associates Lawyers, Whangarei Carter Atmore Law, Auckland
Sandra Anne Grant Barrister, Auckland
HEMARA v LOWE [2023] NZHC 1834 [13 July 2023]
Introduction
[1] In my decision on 27 May 2022 I granted Mr Hemara’s application for the caveat he had lodged over a property at 45 Waro Drive, Hikurangi, Northland not to lapse.1 I recorded that my preliminary view was that as Mr Hemara had succeeded, he was entitled to costs and that there appeared to be no reason to depart from costs on a 2B basis.2 I asked the parties to attempt to agree costs and otherwise to file memoranda.
[2] Agreement could not be reached and so a memorandum has been filed on behalf of Mr Hemara seeking costs of $14,818.00 plus disbursements of $643.26 for a total of $15,461.26. The memorandum attaches a schedule of costs which counsel describes as the same as a schedule sent to the respondent’s solicitors last year. Counsel confirms that no reply was received from the respondent’s solicitors.
[3] Mr Hemara did not take further steps to pursue costs at that time as the respondent lodged an appeal with the Court of Appeal. That appeal however was struck out on 28 April 2023 after Ms Lowe failed to pursue the appeal.3
[4] The case officer has followed up with Ms Lowe for submissions in response to the costs memorandum filed on behalf of Mr Hemara. The only response received has been a schedule of “costs to date” emailed through by Mr Phillip Lowe on behalf of Ms Lowe. The schedule includes the $15,461.26 in costs which is sought by Mr Hemara but has not yet been ordered. I record that counsel for the respondent had been granted leave to withdraw in the Court of Appeal, including for failure to pay fees.4
[5] I consider that Mr Lowe has had sufficient time within which to provide a response to Mr Hemara’s costs memorandum. I therefore set out the relevant costs principles before considering costs in this case.
1 Hemara v Lowe [2022] NZHC 1215.
2 At [112].
3 Lowe v Hemara [2023] NZCA 134.
4 At [1].
Relevant costs principles
[6] Rule 14.1 of the High Court Rules 2016 provides that all matters of costs are discretionary. The discretion is to be exercised on a principled basis, with r 14.2 setting out the general principles that apply. These principles are:5
(a)the party who fails with respect to a proceeding or an interlocutory applications should pay costs to the party who succeeds:
(b)an award of costs should reflect the complexity and significance of the proceeding:
(c)costs should be assessed by applying the appropriate daily recovery rate to the time considered reasonable for each step reasonably required in relation to the proceeding or interlocutory application:
(d)an appropriate daily recovery rate should normally be two-thirds of the daily rate considered reasonable in relation to the proceeding or interlocutory application:
(e)what is an appropriate daily recovery rate and what is a reasonable time should not depend on the skill or experience of the solicitor or counsel involved or on the time actually spent by the solicitor or counsel involved or on the costs actually incurred by the party claiming costs:
(f)an award of costs should not exceed the costs incurred by the party claiming costs:
(g)so far as possible the determination of costs should be predictable and expeditious.
[7] Rules 14.3 to 14.5 provide for the categorisation of proceedings, the appropriate daily recovery rates and the determination of a reasonable time for each step for the purposes of r 14.2(1)(c) by reference to the time specified for each step in Schedule 3. A determination of what is a reasonable time for each step must be made by reference to three bands, relevantly here Band A “if a comparatively small amount of time is considered reasonable”.6 Or, Band B “if a normal amount of time is considered reasonable”.7
Costs in this case
[8] Costs are sought on a 2B basis which I indicated in my judgment was the appropriate basis in my preliminary view. There is no basis for departing from that
5 High Court Rules 2016, r 14.2(1).
6 Rule 14.5(2)(a).
7 Rule 14.5(2)(b).
view. The case appears to be of average complexity so a normal amount of time would be considered reasonable.
[9]The costs claimed by Mr Hemara are as follows:
Step Item Time allowance (Days) 37
Filing originating application and supporting affidavits
2
39
Memoranda
0.4 x 4 = 1.2
40 Preparation of written submissions 1.5 41 Preparation by applicant of bundle for hearing 0.6 42 Appearance at hearing 0.5 Total days 5.8 Daily recovery rate x $2,390 Total costs $14,818.00 Disbursements Originating application $500.00 Sealing orders $50.00 Courier $53.46 Copying $39.80 Total Disbursements $643.26 Combined Total $15,461.26
[10] The only matters that I query in the schedule are two of the four memoranda claimed for. On my review of the file, two of these memoranda appear to be prepared on behalf of the applicant seeking an extension of time to allow Mr Hemara to discuss possible settlement proposals with the wider family group.
[11] In an effort to ensure that costs are properly claimed, I consider it is appropriate to reduce the number of memoranda from four to two. This reduces the costs by
$1,912.8 All other costs are properly claimed.
8 (0.4 x 2) x $2,390 = $1,912.
Result
[12] The respondent, Ms Lowe, is to pay costs to the applicant, Mr Hemara, on a 2B basis in the amount of $12,906 plus disbursements of $643.26 for a total of
$13,549.26.
Associate Judge Sussock
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