Huata v Mangaroa 26N2 Trust

[2022] NZHC 553

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2019-441-000018

[2022] NZHC 553

BETWEEN

WI HUATA DONNA HUATA

Plaintiffs

AND

MANGAROA 26N2 TRUST

Defendant

Hearing:	On the papers
Judgment:	24 March 2022

JUDGMENT OF GRICE J

(Costs)

[1]                 This was a claim by the Mangaroa 26N2 Trust for recovery of land that had been rented from time to time to Mr and Mrs Huata. The hearing ran for three days in the High Court in Napier. I delivered judgment on 28 February 2022. The plaintiff succeeded in all respects.1 The plaintiffs were granted the remedies they sought, being a declaration that the lease had expired on 30 September 2019 and that the tenant was holding over without consent. In addition, an order for possession of the relevant land was granted.2

[2]                 In the substantive judgment I noted that, subject to hearing from the parties, there was no reason why costs should not be ordered on a 2B basis in favour of the

1      Mangaroa 26N2 Trust v Huata [2021] NZHC 113 at [190] [substantive judgment].

2 At [192].

HUATA v MANGAROA 26N2 TRUST [2022] NZHC 553 [24 March 2022]

plaintiff. I reserved leave for the filing of submissions if the parties could not agree upon costs.3

[3]                 The parties have been able to agree on costs generally but a number of matters require determination.

[4]                 The parties agree that costs, in general terms, should be awarded on a 2B basis. The areas of disagreement are:

(a)A claim for inspection of documents by the plaintiff of 1.5 days.

(b)Preparation of hearing of 3 days for filing application and supporting affidavit (entitlement 2 days but claimed for 3 days).

(c)Costs on the application for costs.

(d)Costs on the preparation of memoranda for case management conferences in relation to the initial originating application for possession for non-payment of rent. The plaintiff did not proceed with that original application as the defendant paid the rent. To save costs and time, the application was converted by agreement to an originating application for the recovery of the land which went to hearing.

[5]                 The award of costs is at the discretion of the Judge, subject to the application of the general principles set out under rr 14.1 and 14.2 of the High Court Rules 2016.

[6]                 In general terms, the party who succeeds is entitled to costs and the award should reflect the complexity and significance of the proceeding. Usually the cost should be assessed by applying the appropriate daily recovery rate and the reasonable time for the category of proceeding, as set out in the schedules to the High Court Rules. As far as possible, the determination of costs should be predictable and expeditious.4

[7]Bearing those principles in mind, I turn to the matters in dispute.

3 At [194].

4      High Court Rules 2016, r 14.2(1).

Inspection of documents (1.5 days are claimed)

[8]                 The plaintiff says that it was required to review a substantial number of old trust documents and minutes and provide them to the defendants. The arrangement for the provision of those documents was done informally, rather than by way of formal directions for discovery and inspection.

[9]                 I am aware of the nature and age of a number of those documents, having heard the case. In my view, it will have taken some time to unearth these documents and make them available. However, at the same time, a number of documents filed in support of the plaintiff’s claim were used in the preparation of affidavits so may form part of the claim for preparation.

[10]             However, the informal arrangements and more efficient exchange of documents as occurred in this case should be encouraged. There is no doubt that there are a substantial number of old documents that would have needed to be located and an allowance for inspection of documents should be made. I approach this in a robust manner and award one day under the head of claim.

Preparation for hearing (3 days)

[11]             The plaintiff says that step for preparation for hearing does not apply to originating applications. Such preparation is allowed under step 33B of schedule 3  of the High Court Rules which relates to time allocations for general proceedings. The plaintiff says it is entitled to claim three days for preparation because counsel for the defendants spent a day cross-examining the plaintiff’s witness and that involved preparatory work by the plaintiff. The defendant says that as the plaintiff has already claimed hearing time, it cannot claim another three days because the plaintiff’s witnesses were cross-examined.

[12]             While this matter did start as an originating application, it in fact progressed more like a defended hearing. I consider it appropriate that preparation time be allowed, much in the same way as it would have been allowed in an ordinary action. The parties had agreed to follow the originating application process to expedite matters. In the circumstances at that time it appeared an appropriate way to proceed

and therefore that was the course taken. However, the successful plaintiff should not be penalised by being unable to claim preparation time when clearly preparation was required in order to deal with the evidence, including cross-examining of the defendant witnesses. It is reasonable that the plaintiff be allowed time to prepare for the hearing as the matter did proceed as an action might.

[13]             The plaintiff’s claim of three days for preparation time does not appear excessive considering the matters involved, the volume of documents with which the witnesses were required to be familiar and the length of the hearing. The time claimed is not the criticism. The plaintiff is entitled to the claim for three days preparation.

Filing application and supporting affidavit

[14]             The plaintiff is entitled to claim two days under sch 3 for the filing of the originating application and affidavit. The claim is for three days. The plaintiff says it is entitled to three days because it amended the originating application.

[15]             The amendment of the originating application was brought about because the original application was based on non-payment of rent. Following the filing of that application, the defendant paid the rent – rendering the claim otiose. At that stage, the Court ordered costs against the defendant, but those costs were only for the preparation of submissions and appearance for the wasted expenditure accrued to the plaintiff preparing for a hearing which was then not needed.

[16]             Costs were awarded to the trust on an unsuccessful stay application when the defendant sought to stay the High Court proceedings to enable them to pursue a claim in the Māori Land Court. Isac J dismissed the stay application and awarded costs on that application on a 2B basis.5 These costs were limited to the stay application, rather than for the originating application in general.

[17]             The only other award of costs was an award made in my Minute of 5 December 2019, which was limited to the payment of costs for appearance and preparation limited to the wasted costs on scheduled a half-day hearing, but which did not proceed

5      Mangaroa 26N2 Trust v Huata [2021] NZHC 739 at [13].

due to the defendant’s application for an adjournment.6 I expressly noted that only costs in relation to that day’s appearance and preparation had been sought and were appropriate given that the plaintiffs had been put to some cost by the late application for adjournment and filing of the late documentation.7

[18]             Costs, therefore, have not been awarded on the original or amended application in general terms. Despite the parties agreeing to use the originating application process for the second amended application, that should not disentitle the plaintiff to costs for amending the originating application and filing a further affidavit.

[19]The claim of two days for that step appears appropriate and may be claimed.

Application for costs

[20]             The plaintiff claims 0.4 days for filing a memorandum on costs. The defendant opposes this, saying it was not provided for under sch 3.

[21]             The award of costs for the preparation of the costs application is now routine. Despite the fact that this matter started out as an originating application but in fact was dealt with by the parties more like ordinary proceedings, there is no reason why the plaintiff should not be awarded costs for the preparation of the costs application. The claim for .4 days is reasonable in the circumstances. The plaintiff has been largely successful in the costs claim.

Memorandum for case management conferences

[22]             The plaintiff claims costs for filing memoranda for case management conferences. The defendant opposes this, saying those conferences related to the initial originating application for possession for non-payment of rent. Three memoranda are claimed for 29 May 2019, 13 September 2019 and 21 August 2020. That application did not proceed due to the payment of rent. The defendant says the case management conferences did not relate to the amended application and Court

6 Minute of Grice J (half day hearing on affidavit evidence without any cross-examination), dated 5 December 2019, at [24].

7 At [26].

costs cannot be awarded. As I have noted, costs were not awarded in relation to the earlier application, except for the wasted costs relating to the hearing which did not proceed. For the applications, first relating to recovery of rent and secondly as amended for possession on the grounds that the lease has expired, the plaintiff is entitled to costs as the successful party. The steps were required to progress the application. Accordingly, the plaintiff is entitled to costs for filing the memoranda for the case management conferences.

Other matters

[23]             The plaintiff claimed 1.5 days for preparation of written submissions and in her claim referred to the filing of two sets of submissions. The defendant correctly pointed out that the plaintiff was entitled to 1.5 days for submissions for the second amended application, but no more. I accept that submission, as does the plaintiff. 1.5 days in relation to one set of submissions for the hearing in October 2021 is allowed.

Conclusion

[24]             I have approached the award of costs in a robust manner to recognise the manner in which the parties agreed to approach these proceedings and the use of the originating application process. The parties’ agreed approach to minimise costs and to expedite claims is to be encouraged. In this case, this is what the parties were attempting to do. Therefore, I make the award of costs recognising the reality of the manner in which the proceedings were conducted.

[25]             With the above adjustments, costs are awarded on a 2B basis in favour of the plaintiff.

Grice J

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