Johns v Lord
[2021] NZHC 1850
•22 July 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2020-404-2218
[2021] NZHC 1850
IN THE MATTER of the Family Protection Act 1955 and Section 60 of the Senior Courts Act 2016 BETWEEN
STEPHEN HENRY CYRIL JOHNS
Appellant
AND
CHRISTOPHER NORMAN LORD AND COLIN CLIVE HOLLOWAY
First Respondents
GAIL PATRICIA JOHNS
Second Respondent
Hearing: On the papers Counsel:
S Mitchell for the Appellant
DRI Gay for the First Respondents
G C Jenkin for the Second RespondentJudgment:
22 July 2021
JUDGMENT OF GORDON J
[As to costs]
This judgment was delivered by me on 22 July 2021 at 11 am, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
Solicitors: Conveyancing Centre, Auckland
Craig Griffin & Lord, Auckland Brannigans, Auckland
Counsel:S Mitchell, Auckland DRI Gay, Auckland
G C Jenkin, Auckland
JOHNS v LORD [2021] NZHC 1850 [22 July 2021]
Introduction
[1] This is an application for costs by the second respondent, Gail Johns. The application is also made on behalf of the first respondents, Christopher Lord and Colin Holloway, the executors of the will of Mrs Johns’ late husband, Lewis Johns.
[2] In my judgment of 25 February 2021,1 I dismissed an appeal brought by the appellant, Stephen Johns, against a decision of Judge Burns in the Family Court at Auckland,2 refusing an application by Stephen Johns for further provision from the estate of his late father, Lewis Johns.
[3] Mr Johns then filed an application for leave to appeal. With the agreement of the parties I determined the application on the papers. In my judgment of 16 June 2021 I refused Mr Johns’ application for leave to appeal to the Court of Appeal.3
[4] The parties have not been able to agree costs and separate memoranda have been filed.
The claim for costs
[5]Mrs Johns seeks costs on a scale 2B basis of $5,975 plus disbursements, being
$50 for the filing fee for the sealing of my previous costs order. The costs claim involves three steps which are set out in Table A of the annexure to this judgment, which reproduces the table annexed to the submissions of Mr Jenkin, counsel for Mrs Johns.
[6] Mr Jenkin supports the claim by submitting that although the executors have always been separately represented, in order to save costs the opposition to the application for leave to appeal was conducted by Mr Jenkin on behalf of Mrs Johns but with input from counsel for the executors.
[7] Mr Jenkin acknowledges that the time spent preparing the memorandum referred to in step 11 in Table A was less than the time allocated under Schedule 3.
1 Johns v Lord [2021] NZHC 281.
2 Johns v Lord [2020] NZFC 8974.
3 Johns v Lord [2021] NZHC 1422.
But he says the time in relation to the other two steps, preparing the notice of opposition and opposing submissions, exceeded the time allocated for these steps under Schedule 3. As an overall consequence, the total time spent well exceeded the amount of $5,975 claimed.
[8] Mr Mitchell, counsel for Mr Johns, opposes the application and submits that while the costs sought may be based on the scale, they are well in excess of reasonable costs for the work required in relation to the application for leave to appeal. Mr Mitchell submits overall that the time that should be allocated is less than one day. He says that would be reasonable in all of the circumstances.
[9] Mr Jenkin responds to what he says is a theme running through the submissions for Mr Johns, namely that the leave application was in the nature of a simple interlocutory application. Mr Jenkin submits that the matter was a serious one which was necessarily taken very seriously by Mrs Johns as well as by the executors. Mr Jenkin also notes there was a need for him to liaise with counsel for the executors, given that the defence was also undertaken on their behalf.
Discussion
[10] Notwithstanding Mr Jenkin’s submission that the value of the work involved exceeded the amount claimed for costs, I consider there is some merit in Mr Mitchell’s submission that a claim for 2B scale costs results in an award in excess of reasonable costs. It can be too easy for those claiming costs to rely on a 2B classification as a default position and also to rely on that categorisation/banding for all steps instead of properly considering the categorisation and banding for each step.
[11] It is first necessary for the Court to consider the correct categorisation and then the correct band for each of the three steps.
[12] Rule 14.3 of the High Court Rules 2016 (HCR) sets out three categories, 1, 2 and 3. In this case I accept that the correct categorisation is category 2, which is for proceedings defined as “Proceedings of average complexity requiring counsel of skill and experience considered average in the High Court”. The proceedings were of a nature beyond those classified as category 1, which are “Proceedings of a
straightforward nature able to be conducted by counsel considered junior in the High Court”. As a consequence, the appropriate daily recovery rate as set out in Schedule 2 to the HCR is $2,390. That applies to each of the three steps. There is no basis for having a different categorisation of each of the steps.
[13] I next turn to the correct band. Rule 14.5 of the HCR requires the Court to determine a reasonable time for a step in the proceeding. The three bands set out in r 14.5(2) are as follows:
14.5Determination of reasonable time
…
(2) …
(a)… band A, if a comparatively small amount of time is considered reasonable; or
(b)… band B, if a normal amount of time is considered reasonable; or
(c)… band C, if a comparatively large amount of time for the particular step is considered reasonable.
[14] In this case I consider a comparatively small amount of time is reasonable for each of the three steps. Band A therefore applies. First, the notice of opposition was not a complicated document. The principles applying to an application for leave to bring a second appeal are well settled.
[15] The next step involved the filing of a memorandum agreeing to the Court considering the application for leave to appeal on the papers on the basis of written submissions.
[16] For the third step, the preparation of submissions, counsel was able to draw on the submissions prepared for the appeal itself.
[17]For the above reasons, band A is to apply to each of the three steps.
[18] Scale costs, calculated on a 2A basis, are $2,390. I have set out the calculations in Table B in the annexure to this judgment.
Result
[19] I make an order directing Stephen Johns to pay total costs of $2440 to the second respondent, Gail Johns (being costs of $2390 plus disbursements of $50).
Gordon J
ANNEXURE
Table A: costs claimed
| Step | Particulars of step | Time allocated Schedule 3 | Daily recovery rate Schedule 2 $2,390.00 |
| 23 | Preparation, filing and serving of notice of opposition to interlocutory application for leave to appeal to the Court of Appeal | 0.6 | $1,434.00 |
| 11 | Preparation, filing and serving of memorandum dated 19 April 2021 in response to Minute of Justice Gordon | 0.4 | $956.00 |
| 24 | Preparing, filing and serving written submissions on behalf of the widow and the respondent executors dated 28 May 2021 in opposition to applicant’s submissions | 1.5 | $3,585.00 |
| Total: | $5,975.00 | ||
| Disbursements: | |||
| Filing fee for sealing or order for costs | $50.00 | ||
| Total: | $6,025.00 |
Table B: costs ordered
| Step | Particulars of step | Time allocated Schedule 3 | Daily recovery rate Schedule 2 $2,390.00 |
| 23 | Preparation, filing and serving of notice of opposition to interlocutory application for leave to appeal to the Court of Appeal | 0.3 | $717.00 |
| 11 | Preparation, filing and serving of memorandum dated 19 April 2021 in response to Minute of Justice Gordon | 0.2 | $478.00 |
| 24 | Preparing, filing and serving written submissions on behalf of the widow and the respondent executors dated 28 May 2021 in opposition to applicant’s submissions | 0.5 | $1,195.00 |
| Total: | $2,390.00 | ||
| Disbursements: | |||
| Filing fee for sealing or order for costs | $50.00 | ||
| Total: | $2,440.00 |
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