Kidd v Van Heeren - [2019] NZHC 2133

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2014-404-0725

[2019] NZHC 2133

BETWEEN
MICHAEL DAVID KIDD

Plaintiff

AND

ALEXANDER PIETER VAN HEEREN

Defendant

Hearing: On the papers

Appearances:

S J Mills QC and B O’Callahan for the Plaintiff R H Anderson for the Defendant

Judgment:

30 August 2019

Reissued:

30 September 2019

JUDGMENT OF JAGOSE J

[Costs]

The judgment was delivered by me on 30 August 2019 at 11.00am.
Pursuant to Rule 11.5 of the High Court Rules

……………………………… Registrar/Deputy Registrar

Solicitors/Counsel:
S J Mills QC, Auckland
B O’Callahan Barrister, Auckland Fee Langstone, Auckland

KIDD v VAN HEEREN [2019] NZHC 2133 [30 August 2019]

[1] My judgment of 25 July 2019 – granting Mr Kidd’s application, and therefore dismissing Mr van Heeren’s – expressed at [37] my preliminary view “costs on the present application should be reserved for determination in conjunction with the final accounting”, but reserved costs for determination on short memoranda if counsel differed, as they have done.1

[2] Mr Kidd says costs should follow the event, deferral of their determination being inconsistent with the principle such should be predictable and expeditious, and prejudicial to Mr Kidd as adding to the financial pressures borne by him in the course of this protracted proceeding. He claims “very substantial departures from the Band C allowances for specific steps”. He identifies “a comparatively large amount of time was required” for filing the application and its supporting affidavits (step 22),2 claiming 30 days (“based on actual time attendances … incurred by the applicant’s solicitors and counsel”), instead of the allowed 2 days. On the same basis he claims
10.2 days for preparation of written submissions (step 24), instead of the allowed 3 days for each application, and again 6.8 days for preparation of reply evidence (for which no allowance is made). Again, he claims 10.9 days as time incurred for preparation for hearing, beyond that allowed for preparation of submissions. And finally he claims 23.4 days in actual time incurred in preparation of the electronic bundle (step 25), for which 1 day is allowed for each application. The total costs claimed is for 96.4 days, or $318,120.00. Last, he claims $395,855.27 in disbursements on expert witnesses’ invoices.

[3] I outlined my approach to time incurred as an analogue for costs in a prior judgment between the parties (and others): in essence, where time reasonably required for any step would substantially exceed the time allocated under band C, increased costs (calculated as an uplift from scale) may be payable.3 I add, generally, costs are in contribution to, not indemnification of, the successful party’s legal expenses. Rather, “an appropriate daily recovery rate should normally be two-thirds of the daily rate considered reasonable for each step”.4 The point is express: the assessment of

1      Kidd v van Heeren [2019] NZHC 1761.
2      Although such only qualifies for band C: High Court Rules 2016 [“HCR”], 14.5(2)(c).
3      Kidd v van Heeren [2018] NZHC 1379

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 Kidd v Van Heeren

Details

AGLC: Kidd v Van Heeren [2019] NZHC 2133
Case: [2019] NZHC 2133
Decision Date: 30 August 2019

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Kidd v Van Heeren was heard and decided on the papers. The plaintiff, Michael David Kidd, sought costs and disbursements from the defendant, Alexander Pieter Van Heeren, in relation to legal proceedings between the parties. The central dispute in this case involved the determination of costs and disbursements for the preparation and filing of legal documents, as well as the preparation for hearings. The court was required to decide whether the costs claimed by the plaintiff were reasonable and justified in the context of the proceedings.

The court began by outlining the plaintiff's arguments, which included claims for substantial departures from the Band C allowances for specific steps, as well as claims for additional time incurred in various legal activities. The court considered the principles for assessing costs in civil proceedings, emphasising that costs are in contribution to, not indemnification of, the successful party's legal expenses. The court also noted that costs are generally assessed based on a reasonable time for each step, rather than the actual time spent by the party claiming costs.

After reviewing the evidence and submissions from both parties, the court determined that the time required for the steps in the proceedings did not substantially exceed the allocated time under Band C. The court found that the plaintiff's claims for additional time were not justified, and that the costs claimed were not excessive. The court also approved certain expenses as disbursements, such as the production of an electronic bundle and expert witness fees.

In conclusion, the court ordered the defendant to pay the plaintiff costs in the amount of $79,530.00, along with specific disbursements for the production of the electronic bundle and expert witness fees. The court reserved the determination of other legal and direct expenses for a later stage in the proceedings. The judgment provides guidance on the principles for assessing costs in civil proceedings and the importance of proportionality and reasonableness in cost claims.

Orders