Hemara v Lowe - [2023] NZHC 1834

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…

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 Hemara v Lowe

Details

AGLC: Hemara v Lowe [2023] NZHC 1834
Case: [2023] NZHC 1834
Decision Date: 13 July 2023

CaseChat Overview and Summary

The case of Hemara v Lowe involved a dispute over costs following a decision to maintain a caveat over a property in Hikurangi, Northland. The plaintiff, John Shane Hemara, sought costs from the defendant, Kellee Louise Lowe, following his successful application to prevent the lapse of a caveat. The case was heard on the papers, and the plaintiff's solicitor submitted a memorandum seeking $14,818.00 in costs and $643.26 in disbursements, totaling $15,461.26. The defendant did not respond adequately to the costs memorandum, and the case officer had previously contacted her for a response.

The court needed to determine the appropriate basis for awarding costs and the quantum of those costs. The High Court Rules 2016 provide that costs are discretionary and should be assessed on a principled basis, taking into account the complexity and significance of the proceedings. The court also had to consider whether the costs claimed were reasonable and whether any adjustments were necessary based on the schedule provided by the plaintiff.

The court found that the costs sought by the plaintiff were largely appropriate but noted discrepancies in the number of memoranda claimed. The court reduced the number of memoranda from four to two, resulting in a reduction of $1,912.80 in the costs claimed. The court then calculated the total costs to be awarded, applying the appropriate daily recovery rate and considering the complexity of the case. The court ordered that the defendant pay $12,906 in costs and $643.26 in disbursements, for a total of $13,549.26.

The final orders of the court were that the defendant, Kellee Louise Lowe, pay the plaintiff, John Shane Hemara, the sum of $13,549.26 in costs and disbursements. This amount reflected the reduced costs after considering the appropriate principles and the submissions made by the parties.

Orders