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 DefendantJudgment:
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…
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