Kidd v van Heeren - [2015] NZHC 3191

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-725 [2015] NZHC 3191

BETWEEN
MICHAEL DAVID KIDD

Plaintiff

AND

ALEXANDER PIETER VAN HEEREN Defendant

Hearing: 2 October 2015

Counsel:

S Mills QC and B O'Callahan for Plaintiff
B Latimour, AJ Wakeman and SFW Learmouth for Defendant

Judgment:

14 December 2015

JUDGMENT (5) OF FOGARTY J

This judgment was delivered by me on 14 December 2015 at 4.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors: Kirkland Morrison O’Callahan Limited, Auckland
Jones Fee, Auckland

KIDD v VAN HEEREN [2015] NZHC 3191 [14 December 2015]

Introduction

[1] Following the judgment of this Court on 14 April 2015, the plaintiff filed a memorandum, dated 15 May, seeking indemnity costs or alternatively increased costs.

[2] On 7 July 2015, I issued a judgment as to costs.1 That judgment dealt with two of a larger number of issues dividing the parties on costs:

(a) whether the plaintiff is entitled to indemnity costs, to which the answer was “no”; and

(b)whether the order for costs can include the costs of the second amended statement of claim filed on 27 May which preceded the application for an order for account, dated 27 June 2014.

That issue was answered this way:

[28] I consider the filing of the second amended statement of claim after the South African judgment was necessary in order to provide the context for the application for taking of account, as an interlocutory application. Furthermore, I think that there is a significant overlap in the preparation of the pleadings in the second amended statement of claim and in the preparation of the application for taking of account. So significant that the two tasks should not be treated separately, as that could involve some double-counting. It is appropriate that the costs in preparing the second amended statement of claim be taken into account now and allowed.

[3] This judgment addresses the plaintiff’s claim for increased costs plus disbursements. The plaintiff has filed a schedule, applying Schedule 3 of the High Court Rules identifying the task, recording the time allocation for B scale, the time allocation for C scale, the plaintiff’s actual time and the defendant’s competing allowances.

[4] It is common ground that the proceeding should be classified as category 3 in terms of complexity and significance. The overall issue is whether the time sought
by the plaintiff for each of the steps is a reasonable amount of time.

1 Kidd v van Heeren [2015] NZHC 1572, hereafter this will be referred to as judgment (No 3).

[5] I am satisfied that the plaintiff’s schedule complies with the requirement of the Court of Appeal in Commissioner of Inland Revenue v Chesterfield Preschools Ltd,2 that it is not possible for the Judge to make a general classification of 3C but needs to decide line-by-line the appropriate time allocation for a particular step.

[6] I am also satisfied that the plaintiff’s current approach is correct in seeking what he considers…

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 [2015] NZHC 3191
Case: [2015] NZHC 3191
Decision Date: 14 December 2015

CaseChat Overview and Summary

The High Court was required to decide whether the plaintiff was entitled to increased costs under r 14.6(3)(a) of the High Court Rules 2016. The court found in favour of the plaintiff and ordered that the plaintiff should now submit a revised schedule for costs, in accord with this judgment. The court also ordered that the plaintiff was further entitled to costs on a 3C basis for succeeding in this complex costs dispute, with increased costs. The court encouraged the solicitors to resolve the outstanding costs claim upon the refusal of a stay, dated 13 October 2015, guided by this judgment. The court found that the complexity and significance of the proceeding should be taken into account when deciding whether to increase costs, and that the actual time spent on particular steps was relevant but not determinative. The court also found that the scale time allowances did not create a benchmark for the assessment of increased costs under r 14.6(3)(a). The court concluded that the time reasonably required for each step in the proceeding was greater than that allowed under band C, and that an award of increased costs was justified on the facts of this case.

Orders