Hewitt v Window World Franchise Limited HC Whangarei CIV 2009-488-000488

[2011] NZHC 830

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV 2009-488-000488

BETWEEN  MARK HEWITT Appellant

ANDWINDOW WORLD FRANCHISE LIMITED

First Respondent

ANDROGER BROWN Second Respondent

Hearing:         CIV 2009-488-000488

Counsel:         S Grant for the Appellant

D M Grindle for the Respondents

Judgment:      3 August 2011 at 4:00 PM

[COSTS] JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie on 3 August 2011 at 4.00 pm

Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Distribution: S Grant

D M Grindle

M HEWITT V WINDOW WORLD FRANCHISE LIMITED & ANOR HC WHA CIV 2009-488-000488 3

August 2011

[1]      I refer to my judgment issued on 7 July 2011.[1]    I directed the parties to file memoranda in relation to costs.  Those memoranda have now been received.  The first respondent seeks costs on a 2B basis in accordance with Schedule 3 of the High Court Rules, in the total sum of $4,700.   The second respondent also seeks costs on a 2B basis, in the sum of $2,962.30.  Both respondents have itemised their respective claims to costs.

[1] HC Whangarei CIV 2009-488-000488, 7 July 2011,

[2]      The appellant accepts that the respondents are entitled to costs, and that costs should be fixed on a 2B basis.  There are, however, some minor differences between the parties.  I itemise those differences as follows:

(a)      The first respondent seeks the sum of $376 for an appearance at a mentions   hearing   or   callover,   pursuant   to   paragraph   4.17   of High Court Rules, Schedule 3.  The appellant states that there was no mentions   or   callover   hearing,   and   that   accordingly,   the   first respondent is not entitled to claim steps for step 4.17.  I agree with the appellant.   The only minute on the file for delivery of Hanson J’s ruling is a minute dated 6 April 2011, and it seems that that took place on the papers.   Accordingly, the first respondent’s claim for costs under paragraph 4.17 is declined.

(b)Both the first and second respondents seek the costs of preparing for a defended interlocutory hearing on the basis of .75 of the allocated daily recovery rate in Schedule 2.  The appellant notes that the matter was set down for a half-day hearing.  The appellant accepts that the first respondent should be entitled to an additional .25 of a day for appearing later in the afternoon when I gave an oral judgment, but disputes that either respondent is entitled to costs for preparing on that basis.  I agree with the appellant.  Both respondents are entitled to the costs of preparing on the basis of a half-day hearing.   The first respondent is also entitled to an additional .25 of a day, for its further

attendance on 7 July 2011.

(c)       Both respondents have sought costs for sealing the order or judgment.

I agree with the appellant that only one respondent should be entitled to claim costs for sealing the judgment.   It seems sensible to allow costs in that regard to the first respondent.  Accordingly, I hold that the second respondent is not entitled to costs for sealing an order consequent on my judgment.

(d)      The second respondent also claims for a sealing fee on the order.

There is no filing fee for sealing an order made in an interlocutory proceeding.

[3]      Accordingly, I fix costs in the sum of $3,854 in favour of the first respondent, and $2,068 in favour of the second respondent.

Wylie J