Iles v Z

[2018] NZHC 2178

ORDER PROHIBITING PUBLICATION OF THE NAME OR IDENTIFYING PARTICULARS OF THE FIRST RESPONDENT.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2018-485-62

[2018] NZHC 2178

UNDER

sections 240 and 241 of the Crimes Amendment Act 2003

IN THE MATTER OF

interlocutory application on notice

BETWEEN

MICHAEL ARTHUR ILES

Applicant

AND

Z

First Respondent

ROBYN ANN HARRIS-ILES

Second Respondent

On papers
Judgment:	23 August 2018

JUDGMENT OF DOBSON J

[Costs]

[1]                 In my judgment striking out all of the applicant’s claims against both respondents, I expressed a provisional view on costs in the following terms:1

… the manner in which the proceedings have been advanced has added unnecessarily to the task for the respondents in rationalising grounds for strike out applications, and that increased costs at scale 2B plus 50 per cent for the steps involved could well be warranted.

1      Iles v Z [2018] NZHC 1396 at [73].

ILES v Z [2018] NZHC 2178 [23 August 2018]

[2]                 All parties have subsequently filed memoranda. Both respondents seek costs on a scale 2B basis plus 50 per cent, and seek also additional costs for steps not ordinarily required in such proceedings.

[3]                 For his part, Mr Iles has responded with a request that costs lie where they fall. If any costs are to be awarded against him, he asks that they be reduced to take into account his impecuniosity. He states that the protracted aspects of the family dispute of which these proceedings were part have cost him dearly.

[4]                 Although financial hardship may be a relevant factor in assessing costs as it falls within r 14.7(g) of the High Court Rules 2016, the Court of Appeal has not been receptive to it:2

Hardship is not usually regarded as a ground to resist an award of costs in circumstances where the opposite party has been put to unnecessary expense in responding to an application or appeal.

[5]There is other authority that is discouraging of the prospect.3

[6]                 This is a proceeding in which Mr Iles’ conduct and the manner in which he pursued the proceeding caused those responding to it to reasonably incur costs that were out of the ordinary. Having reflected on the content of the various memoranda, I am satisfied that costs on a 2B basis, with an uplift of 40 per cent, rather than the  50 per cent I provisionally suggested, are appropriate. On reconsideration of the categories claimed by the respondents, I consider there has been an element of duplication which should apply to reduce what might otherwise have been the justified extent of uplift.

[7]                 The respondents have sought an award for additional steps they contend are beyond the usual steps required and provided for in the costs schedule. For Ms Z, some $3,122 is sought and for Ms Harris-Iles, $2,330 is sought, in each case before any uplift. I treat the 40 per cent uplift on scale costs for the conventional steps as covering most of the entitlement for what are claimed as additional costs. However, I do allow a further $1,000 for additional steps for Ms Z, and $800 for Ms Harris-Iles.

2      Chesterfields Preschools Ltd v Commissioner of Inland Revenue [2011] NZCA 640 at [7].

3      For example Singh v Immigration and Protection Tribunal [2014] NZHC 2065 at [8].

[8]I am not prepared to certify for second counsel for Ms Z.

[9]The costs entitlements are accordingly quantified as follows:

(a)For Ms Z:

Costs on a 2B basis	$8,529.75
Plus 40 per cent uplift	3,411.90
Plus additional costs	1,000.00
$12,941.65

(b)For Ms Harris-Iles:

Costs on a 2B basis	$8,139.50
Plus 40 per cent uplift	3,255.80
Plus additional costs	800.00
$12,195.30

[10]              I also allow the disbursements claimed by Ms Harris-Iles. As submitted, the proceeding was incorrectly commenced in Wellington and, in electing to proceed with the strike out application before pursuing an application for change to the proper registry, travelling expenses were reasonably incurred.

Dobson J

Solicitors:

Wotton & Kearney, Wellington for first respondent Holland Beckett, Tauranga for second respondent

Copy to:
The applicant