Hubbard v Kiwirail Limited

[2016] NZHC 1937

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-003145 [2016] NZHC 1937

BETWEEN

PETER BRENT HOME HUBBARD

AND HARLEY HAYNES First Applicants

OCEANIC PALMS LIMITED Second Applicant

AND

KIWIRAIL LIMITED Respondent

Hearing:	On the Papers
Counsel:	Applicants in Person M L Campbell for Respondent
Judgment:	19 August 2016

JUDGMENT OF FOGARTY J ON COSTS

This judgment was delivered by Justice Fogarty on

19 August 2016 at 11.00 a.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors:

Russell McVeagh, Wellington

HUBBARD AND HAYNES v KIWIRAIL LIMITED [2016] NZHC 1937 [19 August 2016]

[1]      By a judgment of this Court dated 20 May 2016 I declined the applicants’

originating application for relief against forfeiture and awarded Kiwirail costs on a

2B basis.1    Kiwirail now seeks an order fixing those costs and ordering payment within ten working days.

[2]      Kiwirail has submitted an order for costs on a 2B basis in the sum of $16,502 plus filing fees in the sum of $160.

[3]      Additionally, they seek the costs of appearing on the notice of intention to cancel the lease in the sum of $3,000 and the costs of travel to Auckland from Wellington for two counsel of $2,192.  Thirdly, they seek the costs of this application in the sum of $1,500.

[4]      In Schedule 1 of the application they correctly out a calculation of 2B scale costs of $16,502.  They then have a table of “other costs”.  They claim $3,000 for the cost  of  preparing  the  notice  of  intention  to  cancel.    No  authority  is  cited  for recovering that sum.  I regard that as an incidental costs of a landlord.  The cost is disallowed.     They  seek  costs  for  attending  the  hearings  by  travelling  from Wellington.  There is no reason why this case required counsel from Wellington.  In

Buis v Accident Compensation Corporation2 Rodney Hansen J held that the costs of

counsels’ travel and accommodation will not be reasonable where there is no special

justification for instructing out of town counsel.

[5]      They seek the filing fee for notice of opposition at $110 and the sealing fee in the sum of $50.  Both of those disbursements are allowed.

[6]      Kiwirail  also  seek  the  costs  of  preparing  this  application  in  the  sum  of

$1,500.  As a matter of course, the calculation of costs is necessary even when costs are  agreed.    Of  the  submissions  to  this  Court  paragraph  4  records  requesting payment.  Paragraph 5 records reiterating the request.  Paragraph 6 records reply by email refusing to pay.  Paragraph 7 records reply and paragraph 8 copies the relevant

correspondence in an affidavit.  Paragraph 9 sets out the argument where there is no

1      Hubbard and Haynes v Kiwirail Limited [2016] NZHC 1061.

2      Buis v Accident Compensation Corporation (2010) 19 PRNZ 585 (HC) at [25].

apparent dispute over quantum, the Court should fix a time for payment.   No authorities are filed in support.  I do not think that the preparation of that material justifies a claim for $1,500.   Again, the costs for preparing this application are declined.

[7]      Kiwirail are awarded, therefore, in total the sum of $16,662.

[8]      I turn then to the request for an order for payment within ten days.  The only basis I can see for that order is to perhaps bring an application for contempt if the payment is not made.   No authorities were cited in support of the granting of an order which would effectively make time of the essence.   That step is not taken lightly. That application is dismissed.