Kake v Napier

[2022] NZHC 2690

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2022-404-872

[2022] NZHC 2690

UNDER

Part 9 of the District Courts Act 2016

IN THE MATTER OF

an appeal against a decision of the District Court at Manukau

BETWEEN

JANE SARAH KAKE

Appellant

AND

ROSS WAYNE NAPIER

Respondent

On the papers

Counsel:

K L Chiu for the appellant

C J Pendleton for the respondent

Judgment:

18 October 2022

COSTS JUDGMENT OF CAMPBELL J

This judgment was delivered by me on 18 October 2022 at 12:00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

KAKE v NAPIER [2022] NZHC 2690 [18 October 2022]

[1]                 In my judgment dated 19 September 2022, I allowed Ms Kake’s appeal. I also found that Ms Kake was entitled to costs on the appeal. The parties have been unable to agree the quantum of costs.

[2]                 Mr Chiu, counsel for Ms Kake, has filed a memorandum seeking costs on a 2B basis of $17,566.50  and  disbursements  of  $1,870.  Ms  Pendleton,  counsel  for  Mr Napier, raises two issues with the claimed costs. She submits that:

(a)There should be no allowance for second counsel at the hearing.

(b)Ms Kake succeeded only on a basis that she failed to identify in her documents filed in the District Court and on appeal in this Court. Accordingly, Ms Pendleton submits that, under r 14.7(g) of the High Court Rules 2016, there should be a significant reduction in the costs awarded to Ms Kake, or even an order that costs lie where they fall.

[3]                 I agree that there should not be an allowance for second counsel. The hearing of the appeal was concerned with a confined issue. The hearing took only half a day. It was a straightforward hearing that did not require the assistance of second counsel.

[4]                 It is also correct that Ms Kake succeeded on a basis that was not clearly articulated in the documents filed in support of her appeal. (Whether she articulated that basis in her documents in the District Court is a matter for that Court, if and when it has to determine costs arising out of the applications that led to the decision that was the subject of the appeal.) The basis was hinted at in the submissions filed in support of her appeal, but no more than hinted at. Those submissions did not identify the key authorities that supported my reasons for allowing Ms Kake’s appeal.

[5]                 I consider that this provides a justification for some reduction in the costs that otherwise would be awarded to Ms Kake. Because Ms Kake’s submissions did not clearly articulate the basis on which her appeal should succeed, substantial parts of her submissions were directed at matters that did not have to be traversed in order        to determine her appeal (such as whether she had been in a qualifying de facto relationship with Mr Napier). In turn, I consider this would have unnecessarily

increased the costs of Mr Napier in preparing his submissions and at the hearing.      I consider that these are reasons that justify a reduction in costs under r 14.7(g). The position is closely analogous to that addressed by r 14.7(d) (the successful party failing in respect of an issue which significantly increased the costs of the other party).

[6]                 I consider the appropriate reduction is to disallow a part of the costs that would otherwise be awarded for items 56 (preparation of written submissions) and 57 (appearance at hearing). For item 56, I allow one day rather than three days. For item 57, I allow a quarter day rather than a half day. These reductions reflect my assessment of the unnecessary additional costs incurred by Mr Napier as a result of Ms Kake traversing matters in her written submissions, and at the hearing, which were ultimately irrelevant.

[7]                 I do not consider there is any justification for a broader reduction in costs   (let alone a refusal of costs altogether). Ms Kake’s failure to articulate the basis of her appeal did not cause Mr Napier to incur other additional unnecessary costs. Nor is there any basis for reducing the disbursements to be awarded to Ms Kake.

[8]                 Finally, there are two other items claimed by Ms Kake that I do not allow. She has claimed  for  item  41  (preparation  of  bundle  for  hearing).  Item  41  applies  to originating applications, not to appeals. For appeals, the equivalent item is item 55 (preparation of the case on appeal), which Ms Kake has claimed. Ms Kake has also claimed 0.4 of a day for filing her memorandum on costs. Given Mr Napier’s partial success in opposing the quantum claimed by Ms Kake, I allow only 0.2 of a day.

Result

[9]                 I order Mr Napier to pay to Ms Kake costs of $9,679.50 (4.05 days at $2,390) and disbursements of $1,870, a total of $11,549.50.

Campbell J