Joyce v Hooton - [2021] NZHC 2141

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-539

[2021] NZHC 2141

BETWEEN
STEVEN LEONARD JOYCE

Plaintiff

AND

MATTHEW OWEN HOOTON

First defendant (discontinued)

FOURTH ESTATE HOLDINGS (2012) LIMITED

Second defendant

TODD ALLEN SCOTT

Third defendant

Hearing: On the papers

Counsel:

Z G Kennedy and H M Jaques for the plaintiff PWG Ahern for the second and third defendants

Date of judgment:

17 August 2021

JUDGMENT OF JAGOSE J

[Costs]

This judgment was delivered by me on 17 August 2021 at 11.00am.
Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Counsel/Solicitors:
Z G Kennedy, Barrister, Auckland MinterEllisonRuddWatts, Auckland Morrison Kent, Auckland

JOYCE v HOOTON – Costs [2021] NZHC 2141 [17 August 2021]

[1] My judgment in favour of the plaintiff (“Mr Joyce”) having been set aside,1 its costs award to him falling with it,2 the second (“Fourth Estate” or “NBR”) and third (“Mr Scott”) defendants respectively now seek their costs of $74,307.00 and
$24,405.00, calculated at 2B rates, and $940 and $110 disbursements. I regret the delay in addressing this application, which only was provided to me on 20 July 2021, I subsequently being away on circuit.

[2]At issue is if the defendants are entitled to costs referable to:

(a)preparation and attendance times for each by their shared counsel;

(b)preparation time for adjourned May 2019 hearing;

(c)preparation time in relation to briefs of evidence of uncalled witnesses;

(d)actual or scheduled hearing time; and

(e) band A or no costs on non-party discovery and pre-trial applications—

the plaintiff contending for reduced costs and disbursements — $15,435.00 on steps taken before Mr Scott’s joinder; $4,750.00 for steps exclusively referable to his joinder; and $32,952.50 on steps taken jointly thereafter — totalling $52,957.50, and seeking set-off of $4,206.00.

[3] It should be unnecessary to recount the general principles that apply to determination of costs, prime among them being the party who fails with respect to a proceeding should pay costs to the party who succeeds, costs are payable according to scale applied by reference to “each step reasonably required in relation to the proceeding” and “so far as possible the determination of costs should be predictable and expeditious”.3

Shared counsel

[4]Rule 14.15 of the High Court Rules 2016 provides:

1      Fourth Estate Holdings (2012) Ltd v Joyce [2020] NZCA 479 [CA judgment], setting aside Joyce v Hooton [2019] NZHC 3356 [HC judgment].
2      Joyce v Hooton [2020] NZHC 1299 [First costs judgment].
3      High Court Rules 2016, r 14.2(a), (c) and (g).

14.15   Defendants defending separately
The court must not allow more than 1 set of costs, unless it appears to the court that there is good reason to do so, if—
(a)    several defendants defended a proceeding separately; and
(b)    it appears to the court that all or some of them could have joined in their defence.

Although the rule has more obvious application to defendants’ separate representation, its threshold is if defendants defended separately.

[5] Here, as…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Joyce v Hooton

Details

AGLC: Joyce v Hooton [2021] NZHC 2141
Case: [2021] NZHC 2141
Decision Date: 17 August 2021

CaseChat Overview and Summary

In Joyce v Hooton, the second and third defendants, Fourth Estate Holdings (2012) Limited and Todd Allen Scott, applied for costs following the setting aside of a previous judgment in favour of the plaintiff, Steven Leonard Joyce. The defendants sought costs totaling $74,307.00 and $24,405.00, respectively, calculated at 2B rates, along with disbursements. The primary legal issues revolved around whether the defendants were entitled to costs for various steps taken during the proceedings, including preparation and attendance times, preparation for an adjourned hearing, preparation of briefs for uncalled witnesses, actual hearing time, and costs related to non-party discovery and pre-trial applications. The plaintiff argued for reduced costs and sought set-off.

The court addressed each issue in turn, applying the general principles of cost allocation and the specific provisions of the High Court Rules 2016. It found that the defendants were entitled to their respective costs for most steps, with an uplift of 20% for preparation and attendance at conferences and hearings due to the shared representation. The court rejected the plaintiff's contention for reduced costs on non-party discovery and pre-trial applications, as well as for set-off. The court held that the determination of costs should be predictable and expeditious, and that the defendants should be compensated for their successful defence in light of the reversal of fortunes.

In conclusion, the court allowed the second and third defendants their respective costs, with an uplift of 20% for preparation and attendance at conferences and hearings. The court left it to counsel to quantify the costs in accordance with this judgment for fixing by the Registrar if necessary.

Orders