Hunter v Carden HC Auckland CIV 2006-404-6282

[2010] NZHC 1560

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2006-404-006282

BETWEEN  KEITH MERVYN GEORGE HUNTER Plaintiff

ANDDAVID M CARDEN Defendant

Hearing:         on papers

Appearances: K M G Hunter plaintiff in person

M O Robertson for defendant

Judgment:      6 September 2010 at 4:30pm

COSTS JUDGMENT OF ASSOCIATE JUDGE ABBOTT

This judgment was delivered by me on 6 September 2010 at 4 30pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Shieff Angland, PO Box 2180, Auckland 1140 for defendant

Mr K M G Hunter, PO Box 46 115, Herne Bay, Auckland 1147 by email: [email protected]

HUNTER V CARDEN HC AK CIV 2006-404-006282  6 September 2010

[1]      This judgment concerns an application for costs by the defendant, as the successful party on an application for summary judgment.

[2]      The plaintiff brought this proceeding against the defendant as his barrister in a relationship property dispute.  He contended that the defendant had failed to act with reasonable care and skill in the preparation and conduct of his case.

[3]      The defendant applied for summary judgment, contending that the plaintiff did not have an arguable case.  In the alternative the defendant sought an order for security for costs.

[4]      I gave judgment for the defendant on 20 December 2007, finding that the plaintiff did not have an arguable case.   I indicated that I saw no reason to depart from the usual principle that costs follow the event, and that I considered a scale 2B basis to be appropriate.   However, as the parties had not addressed me on costs, I invited them to confer and if they were unable to agree I directed them to file memoranda on which a decision on costs would be given.

[5]      The parties were unable to agree on costs.   Memoranda were filed.   The defendant had intended seeking increased costs but, in light of the indication in my judgment, merely sought costs on a 2B basis.  The plaintiff contended that the way in which the defendant had run his case had caused unnecessary costs, and sought a reduction of 25% on the scale costs being sought.

[6]      A decision on costs was deferred, to await the outcome of the appeal.  The Court of Appeal dismissed the appeal in December 2008.   Unfortunately the unresolved claim for costs was overlooked until recently.

Is a reduction appropriate?

[7]      As the plaintiff is not seeking anything more than middle band scale costs, the only issue in this case is whether there is any basis to reduce those costs.

[8]      The  defendant  put  forward  two  matters  as  justification  for  reducing  the standard costs:

a)       The defendant had placed reliance on the opinion of a senior counsel, but those views were unnecessary to the outcome of the case.   The plaintiff said that a reduction was justified both having regard to the extra costs to which he had been put in addressing that evidence (he had obtained legal advice on it), and because this part of the defendant’s costs were therefore unnecessary;

b)The plaintiff had presented a claim for security for costs which again proved to be unnecessary.

[9]      I see nothing in either of these points.   The defendant was entitled to put forward the expert evidence of the senior counsel.  The only reason that it was not taken into account was that the plaintiff disputed many of the assumptions of fact on which the opinion was based.  I was able to determine the application without having to take that opinion into account.  That is not an unusual position in any defended summary application.   It does not mean that there is necessarily a deduction to be made from standard costs.  If the case had gone on to trial, the evidence may well have been relevant and justified.

[10]     Similarly, it is not unusual to advance applications in tandem.   The sole reason that the application for security for costs was not determined was that the substantive claim was not arguable.   Again that does not mean ipso facto that the costs should be reduced.

[11]     It is also important to note that the focus should be on the costs that the successful party incurs, not on the costs of the unsuccessful party.

[12]     One of the principles behind the scale costs prescribed by the High Court Rules is that costs be predictable.  For that reason, the Rules focus on assumed rather than  actual  costs  of  running  a  particular  kind  of  application.    To  reduce  those assumed costs, there has to be something to suggest that the assumed costs are out of

proportion to the type of proceeding being brought, rather than because a particular step was not taken or was not fully justifiable.  There is no basis for a finding of that nature in this case.

[13]     It is also material that the defendant has not made a separate application for security for costs from his application for summary judgment.

[14]     The costs that the defendant seeks are justified in terms of the various items claimed and the cost category and time banding.

[15]     The defendant is entitled to costs as sought, namely $7,360 together with disbursements as fixed by the Registrar.

Associate Judge Abbott