Hills (aka Bertolli) v Lewis

[2015] NZHC 1781

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-552 [2015] NZHC 1781

UNDER

the Contractual Remedies Act 1979

BETWEEN

MAURICE ALAN HILLS (AKA: MAURICE VINCENZO BERTOLLI)

Appellant

AND

DANIEL TE AOMARAMA HOHEPA LEWIS

Respondent

Hearing:	On the papers
Judgment:	30 July 2015

JUDGMENT OF KATZ J [Costs]

This judgment was delivered by me on 30 July 2015 at 4:45pm

Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors:           Pidgeon Law, Auckland

Counsel:           M Hills, Parkvale, Auckland

J R S Lewis, Auckland

HILLS v LEWIS [2015] NZHC 1781 [30 July 2015]

Introduction

[1]      On 18 March 2015 Maurice Hills (also known as Maurice Bertolli) filed a notice of appeal against judgment delivered by Judge Sharp, in the District Court at Auckland.  On 28 May 2015 Mr Hills abandoned his appeal, apparently because his legal aid request was denied.

[2]      The respondent, Daniel Lewis, now seeks costs on a 2B basis in respect of attendances in relation to the abandoned appeal.  In particular, he seeks costs for:

(a)       preparation for two case management conferences;

(b)      filing memoranda for each case management conference; and

(c)       appearing at each case management conference.

[3]      Mr Hill submits that the costs claimed they are excessive and should be reduced.

Discussion

[4]      Given that the appeal was abandoned, any costs Mr Lewis has incurred in relation to it have been “wasted” and he is accordingly entitled to an award of costs in his favour.   Under r 14.5 of the High Court Rules, what is a reasonable time for a step must be made by reference:

(a)        to band A, if a comparatively small amount of time is considered reasonable; or

(b)        to band B, if a normal amount of time is considered reasonable; or

(c)        to band C, if a comparatively large amount of time for the particular step is considered reasonable.

[5]      Counsel for Mr Lewis submitted that 2B costs are appropriate for all steps.

[6]      I am satisfied that the proceedings are appropriately categorised as category 2 proceedings.   I therefore now turn to consider which band is appropriate for each step in the proceeding.

[7]      I have concluded that the attendances in relation to the first case management conference are appropriately classified as band B.  The memorandum prepared for that conference (dated 14 April 2015) is relatively detailed.  I anticipate that a normal amount of time would have been required to prepare for and attend the conference.

[8]     The second case management conference is in a different category.   A comparatively small amount of time was likely required to draft the second memorandum, which simply seeks a short adjournment.  Similarly, a comparatively small amount of time would have been required to prepare for the second conference on 5 May 2015.   Band A is accordingly appropriate for those two steps.

[9]      There is nothing to suggest that anything other than a normal amount of time (Band B) would have been necessary for any of the other steps, even taking into account that the appeal was not complex.  The relative complexity of the appeal is considered in the categorisation of the proceedings as category 1, 2 or 3, not the assessment of whether the reasonable time is under band A or B.  Further, Mr Lewis was required to meet the costs of his lawyer twice attending court on his behalf and should be compensated for that.

Result

[10]     Costs  calculated  in  accordance  with  the  approach  I  have  set  out  above amount to $3,582.

[11]     The appellant is accordingly ordered to pay costs to the respondent in that sum.

Katz J