Johns v Nicholson

[2012] NZHC 2060

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2012-404-003613 [2012] NZHC 2060

BETWEEN  STEPHEN HENRY CYRIL JOHNS Appellant

ANDMAIRI NICHOLSON First Respondent

ANDFIRST RECOVERY SERVICES LIMITED Second Respondent

Hearing:         (On the papers)

Counsel:         No Appearance by or for the Appellant

J N Carruthers for the First Respondent
M c Brugeyroux for the Second Respondent

Judgment:      15 August 2012

[COSTS] JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie on 15 August 2012 at 2.00 pm

Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Distribution:
S Johns: 466 Te Atatu Road, Te Atatu Peninsula, Waitakere 0610, Auckland
M C Brugeyroux: [email protected]

J N Carruthers: [email protected]

JOHNS V NICHOLSON & ANOR HC AK CIV 2012-404-003613 [15 August 2012]

[2]      The first respondent, Ms Nicholson, has applied for costs in the sum of

$1,242.30.  Costs have been calculated on a 2B basis.

[3]      The second respondent, First Recovery Services Limited, also seeks costs.  It advises that costs for all steps calculated on a 2B basis would equate to $3,184, but that for the purposes of its costs application, it seeks costs only in the sum of $1,592.

[4]      No response has been received from the prospective appellant, Mr Johns.  I am advised that he has belatedly filed an application to reinstate the appeal.  That application will fall to be decided in the ordinary course of events.   It does not preclude me from making a costs order.

[5]      I can see no reason why the Court should depart from the ordinary rule that costs follow the event, even if an award of costs may cause hardship to Mr Johns.

[6]      Here, there is nothing to suggest that Mr Johns is legally aided.  He appeared in person at the District Court.  He filed his own notice of appeal.  While that notice of appeal did state that he was going to apply for legal aid, there is nothing on the file to suggest that that application was made.

[7]      I accept that both respondents have incurred unnecessary costs as a result of the abandoned appeal.  Mr Johns failed at the outset to comply with the High Court Rules.  The notice of appeal was filed late.  The respondents were not served with a copy  of  the  notice  of  appeal.    The  notice  of  appeal  was  not  filed  with  the District Court.

[8]      I gave Mr Johns the opportunity to make an application to rectify the various breaches of the High Court Rules.  He failed to take advantage of that opportunity.

[9]      The first and second respondents were required to file a memorandum for the case management appeals conference.   They also appeared when the matter was called before me on 10 July 2012, and again on 17 July 2012.  On neither occasion did Mr Johns enter an appearance.

[11]     Here, it is appropriate to fix costs on a 2B basis.   Pursuant to step 13 in Schedule 3 to the High Court Rules, it is also appropriate to allow costs to the respondents for their preparation for the case management conference.  Given that a joint  memorandum  was  filed,  I allow  both  the  first  respondent  and  the  second respondent .1 of a day in that regard.  That is one-half each of the normal allowance. It is also appropriate to allow both respondents costs pursuant to step 14 in the High Court Rules — ie .2 of a day for each of their respective appearances at the case management conferences.  These steps total .5 of a day for each respondent.

[12]     I am not persuaded that any further costs are appropriate.

[13]     At  the relevant  time, category 2  costs  were $1,990  per day.[1]      All  costs incurred by the respondents postdate the date that amendments were made to the High Court Rules, increasing the costs recoverable under the applicable Schedule.  I award costs of $995 in favour of the first respondent and costs of $995 in favour of the second respondent.  Each of the first and second respondents are also entitled to

[1] High Court Amendment Rules 2012.

recover any disbursements incurred in sealing the costs orders.

Wylie J