Johnson v Johnson

[2020] NZHC 3182

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2018-454-144

[2020] NZHC 3182

BETWEEN

BRYAN EWART JOHNSON, DAVID HOUGHTON WALE and CHRISTOPHER DAN WILLIAMS

Plaintiffs

AND

CRAIG BRYAN JOHNSON and MARIA BERNADETTE JOHNSON

First Defendants

LITTLE SCHOOL LIMITED
Second Defendant

JOHNSON PRESCHOOL LIMITED

Third Defendant

CIV-2020-485-117

BETWEEN

MARIA BERNADETTE JOHNSON

Plaintiff

AND

CRAIG BRYAN JOHNSON

First Defendant

CRAIG BRYAN JOHNSON,

MARIA BERNADETTE JOHNSON and GRANT MAITLAND RICHARDSON as

the trustees of the C B and M B Johnson Family Trust

Second Defendants

CIV-2020-485-421

BETWEEN

CRAIG BRYAN JOHNSON

Plaintiff

AND

LIFE LEARNING AOTEAROA LIMITED

First Defendant

JOHNSON v JOHNSON [2020] NZHC 3182 [3 December 2020]

MARIA BERNADETTE JOHNSON

Second Defendant

LITTLE SCHOOL LIMITED
Third Defendant

JOHNSON PRESCHOOL LIMITED
Fourth Defendant

Counsel:

R Fowler QC for plaintiffs in CIV-2018-485-144

C Stevens and T Mijatov for Craig Johnson in all proceedings M Wigley for Maria Johnson in all proceedings

O Jaques as amicus in CIV-2018-485-144 and CIV-2020-485-421

Judgment:

3 December 2020

COSTS JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

[On the papers]

[1]    In my judgment of 3 July 2020 I dismissed an interlocutory application by Maria Johnson for leave to commence a derivative claim in the name of Johnson Preschool Ltd against Craig Johnson.

[2]Mr Johnson now seeks costs in relation to that application.

[3]    A costs order is  not  resisted  by  Ms  Johnson.  However,  on  her  behalf, Mr Wigley questions three aspects of the calculations made by Mr Johnson’s solicitors as to costs (the calculation is based on 2B scale costs, but a 50 per cent uplift is sought).

[4]    The first issue concerns the allowance for second counsel. In relation to this, although this was an interlocutory matter, it was not without its factual and legal complexities. Moreover, this is a situation in which second counsel, Mr Stevens’ junior, Mr Mijatov, presented a component of the argument on Mr Johnson’s behalf. I am satisfied that this is an appropriate case to certify for second counsel and I do so.

[5]    The second issue concerns the preparation  of  the  bundle  of  documents.  Mr Johnson claims for an additional allowance of half a day, due to what was said to

be the late and non-compliant  bundle  prepared  by  Ms  Johnson’s  solicitors.  On Ms Johnson’s behalf Mr Wigley contends that the allowance (of two days) for the preparation of affidavits, lists of issues and authorities and agreeing a common bundle is sufficient to cover the cost of the preparation of the bundle. I disagree. Responsibility for this rested with the applicant and to the extent that the respondent was obliged to contribute to the preparation or finalisation of the bundle this is a legitimate claim. In my assessment, an additional half day allocation is modest, and I allow it.

[6]    Finally, Mr Wigley opposes the application made on Mr Johnson’s behalf for a 50 per cent uplift. That application is made on three bases:

(a)It is said that Ms Johnson’s solicitors and counsel failed to comply with timetabling orders or directions. Whilst that may be so, it is not obvious to me from the material before the Court that that prejudiced Mr Johnson in opposing the order sought or can be directly linked to any additional cost incurred by him (other perhaps than the costs relating to the preparation of the bundle dealt with at [5] above).

(b)It is also said that Ms Johnson pursued an unmeritorious claim. It is true that she was unsuccessful, but it does not follow that her claim was fundamentally unmeritorious. In my view, it was not lacking in merit to the level required to justify an uplift in scale costs which, after all, are designed to provide an appropriate level of compensation for costs to the successful party.

(c)It is said finally that at the hearing counsel for Ms Johnson “contributed unnecessarily to the time of the hearing by pursuing detailed submissions on matters which were not relevant”. I don’t accept that. Mr Wigley was simply putting Mrs Johnson’s case as strongly as he felt able.

[7]In my view, this is not a case in which an uplift in costs is warranted.

[8]    I make an order that Ms Johnson pay costs to Mr Johnson in relation to her unsuccessful application in the sum of $14,579 plus disbursements of $110.

Associate Judge Johnston