Houston-Quay v Henson

[2019] NZHC 1197

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2014-419-93

[2019] NZHC 1197

BETWEEN

AMANDA JANE HOUSTON-QUAY

Applicant

AND

JULIAN DOYLE HENSON (AKA IAN HENSON)

Respondent

Hearing:	On the papers
Appearances	K F Shaw for Applicant D Hayes for Respondent
Judgment:	29 May 2019

JUDGMENT OF PAUL DAVISON J

[Re: Costs]

This judgment was delivered by me on 29 May 2019 at 3:00 pm Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:

Hunwick Law Limited, Hamilton Harkness Henry, Hamilton

HOUSTON-QUAY v HENSON (AKA IAN HENSON) [2019] NZHC 1197 [29 May 2019]

[1]    The applicant, Amanda Houston-Quay, succeeded in an appeal from a judgment of the District Court at Hamilton delivered on 11 February 2014. She obtained an award of costs on the $20,000 sum that she successfully sued the respondent for. However, the District Court Judge declined to award her costs. On appeal Brewer J held that the applicant was entitled to costs on her claim for $20,000 and allowed her appeal. In other respects the applicant’s appeal failed. Brewer J awarded the applicant costs on a 2B basis in relation to her successful appeal. His Honour said:1

I award Ms Houston-Quay costs on a 2B basis in relation to her successful appeal against the refusal to allow costs. Due to the trivial nature of the other matters, and the mixed success of the appeals thereon, I decline to award costs on those matters. The Registrar will calculate costs as awarded if the parties cannot agree them.

[2]    By interlocutory application dated 16 December 2014 the respondent, Mr Henson, applied for leave to appeal from the judgment of Brewer J. The application was not prosecuted with any sense of urgency and on 20 March 2019 I made an order directing that the respondent’s application for leave to appeal be set down for hearing on 2 May 2019. I made a timetable direction for the filing of submissions by the applicant and respondent.

[3]    The respondent subsequently elected not to pursue the application for leave to appeal and the parties have now filed memoranda regarding the applicant’s entitlement to costs on her successful appeal and pursuant to the judgment of Brewer J.

[4]    The applicant seeks costs totalling $12,488.01 which includes interest to 22 March 2019. The breakdown of the applicant’s costs calculation include attendances for commencement of appeal, a memorandum prepared for a mentions hearing, preparation of case on appeal, preparation of submissions and the Court appearance at the hearing of the appeal for which a quarter day is claimed. Disbursements totalling

$1,443.51 are also claimed.

[5]    The respondent refers to Brewer J’s comment that he declined to award costs on the “other matters” where the applicant had mixed success as regards her appeals.

1      Houston-Quay v Henson [2014] NZHC 2899 at [30].

The respondent submits that only costs on the successful part of the appeal have been awarded and so, as the applicant only succeeded on one part of her appeal, full costs would not be appropriate and should not be awarded.

[6]    For the respondent Mr Hayes submits that 60 per cent of the scale costs should be awarded to the applicant to “reflect the result of the appeal”. Mr Hayes submits that the applicant’s claim for three days’ preparation for the appeal ought to be reduced as, in his submission, one day to prepare the submissions would have been sufficient.

[7]    While the applicant succeeded on the matter which was the principal ground of her appeal, she had mixed success on the other matters under appeal. I agree with Mr Hayes that three days’ preparation of submissions is a generous use of time for a matter such as this appeal was having regard to the issues arising.

[8]    Accordingly I shall allow 1.5 days for preparation of submissions for the appeal. I accordingly allow the applicant costs on a 2B basis of $8,059.50 together with disbursements of $1,443.51.

Paul Davison J