Jackson v Jackson

[2016] NZHC 2219

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-106 [2016] NZHC 2219

IN THE MATTER	of the Estate of Ivy Jackson
BETWEEN	RAYMOND BARRY JACKSON Applicant
AND	STEPHEN JAMES JACKSON First Respondent
AND	LINDA MARGARET JACKSON Second Respondent

On the papers
Counsel:	R Butler for Applicant CJ Orton for Respondents
Judgment:	20 September 2016

JUDGMENT OF TOOGOOD J [COSTS]

This judgment was delivered by me on 20 September 2016 at

Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Jackson v Jackson [2016] NZHC 2219 [20 September 2016]

[1]      On 27 July 2016, I issued a judgment appointing Mr Raymond Barry Jackson administrator of the estate of his late mother.1  At [17] of the judgment I held that the applicant was entitled to costs on a Category 2B basis, although final determination of costs was reserved for the exchange of memoranda in the event that the parties could not agree. Agreement has been reached on costs except as to the costs claimed by the applicant for substituted service on the respondents, his brother and sister-in-

law.

[2]      In  his  costs  memorandum,  Mr Butler  has  set  out  the  steps  taken  by the applicant to effect personal service on the respondents, who reside in Queensland. The steps include writing to the respondents' solicitors seeking contact details; they were not provided.  An inquiry was made whether the solicitors were authorised to accept service; the applicant was told that the solicitors were not so instructed. A similar response was received to a further inquiry at the time the proceedings were ready for service.   Voice messages were left by a process server on the first respondent's mobile phone number without response.  An email to the respondents also failed to elicit any response.  There is no challenge to Mr Butler’s account.  It is plain that substituted service was necessary in those circumstances.

[3]      The agreed costs for the originating application are $10,686.50.  Costs sought by  the  applicant  for  substituted  service  total  $7,482.50.    That  latter  claim  is calculated on the basis of a Category 2B calculation and includes a claim for one- and-a-half day's preparation of a memorandum of submissions in support of the application for an order for substituted service.

[4]      The  respondents  argue  that  no  costs  were  sought  in  the  application  for substituted service nor reserved by Fogarty J when he granted the application, on the papers, in a brief Minute noted on the file.  They say also that service costs were not contemplated  when  costs  were  reserved  in  the  substantive  judgment.     The respondents also complain that the claim for one-and-a-half day's preparation is

excessive.

1      Jackson v Jackson [2016] NZHC 1723.

[5]      An application for costs on a Category 2B basis was included in Mr Butler's memorandum in support of the application for substituted service, with an alternative request that costs be reserved.  Given that Fogarty J did not make a costs order on the application it may be assumed that the Judge intended that costs should be reserved.  In any event, the costs of service are interlocutory costs in the proceeding that are recoverable; they were reserved in the substantive judgment.

[6]      While  an  application  for  substituted  service  is  frequently,  if  not  usually, routine, there were special features in the present case which justified Mr Butler's

34-paragraph memorandum in support.  Category 2B is appropriate and the schedule allowance for preparation is one-and-a-half days.

[7]      The respondents claim the cost of substituted service is excessive but they do not identify particular items which are said to have been claimed improperly.  With a modicum of co-operation on their part, such costs could have been avoided.  They have only themselves to blame for the consequences.

[8]      The respondents shall pay to the applicant costs and disbursements on the substantive application in the sum of $10,686.50, and costs and disbursements on the application for substituted service in the sum of $7,482.50.

...........................................

Toogood J