Kinney v Pardington - [2020] NZHC 46

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2013-443-000058

[2020] NZHC 46

BETWEEN
ERIN MAUREEN KINNEY

Plaintiff

AND

MYRTLE MARGARET PARDINGTON DAVID JOHN PARDINGTON

KENNETH MARK PARDINGTON

DefendantS

Hearing: 3 September 2019

Appearances:

C T Gudsell QC and P M Nielsen for the Plaintiff S W Hughes QC for the Defendants

Judgment:

31 January 2020

JUDGMENT OF CULL J

[Costs on a 2B basis]

[1] In my judgment of 3 September 2019,1 in which I addressed party costs and administration costs, I found that the plaintiffs’ costs should be awarded on a 2B basis as payable by the estate. I allowed the parties to be heard on the amount of 2B costs, which were contested.2

[2] I directed the parties to address the issues set out in [24] of the judgment and I now deal with each of them. I then turned to reasonable disbursements and offsets.

1 Kinney v Pardington [2019] NZHC 2196.
2 At [35].

ERIN MAUREEN KINNEY v MYRTLE MARGARET PARDINGTON [2020] NZHC 46 [31 January 2020]

Does Ms Kinney need to provide copies of actual invoices rendered?

[3] Ms Hughes QC, for the interested parties, submits that Ms Kinney should recalculate her claim for costs and in particular seeks to have copies of actual invoices rendered. She does so on the basis that Ms Kinney had litigation funding from her former counsel’s brother and that a party cannot seek more than that which has been paid for in each of the steps in question. In my judgment I directed the plaintiff to address the issues at [24]. The plaintiff has done so but has not provided copies of Ms Kinney’s invoices because of the significant further work and cost required to separately itemise attendances for the respective proceedings. However, an undertaking by the plaintiff’s solicitor and an affidavit by the plaintiff has been filed confirming that each item of costs sought by the plaintiff has been incurred. I reach the following conclusions.

[4] Rule 14.2(1)(f) of the High Court Rules 2016 provides that an award of costs should not exceed the costs incurred by the party claiming costs. It is upon this basis that Ms Hughes seeks proof of Ms Kinney’s actual costs. In this case and at this stage of the proceeding, I am content to accept the undertaking given by Ms Kinney’s solicitor, which was made after a review of an attached schedule of scale costs as against invoices issued to, and subsequently paid, by the litigation funder for the plaintiff at the outset of these proceedings. The plaintiff has also filed an affidavit deposing that the funder of this litigation has paid in excess of 3C scale costs.

[5] Given the length of this proceeding, the nature of the proceeding and the requirement on the plaintiff to prove paternity before advancing her Family Protection claim, I consider the Court is justified in relying on her current solicitors undertaking in satisfaction of r…

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 Kinney v Pardington

Details

AGLC: Kinney v Pardington [2020] NZHC 46
Case: [2020] NZHC 46
Decision Date: 31 January 2020

CaseChat Overview and Summary

In the High Court of New Zealand, the plaintiff, Erin Maureen Kinney, sued the defendants, Myrtle Margaret Pardington, David John Pardington, and Kenneth Mark Pardington, seeking a paternity order, leave to bring proceedings out of time for a Family Protection Act claim, and orders under that Act. The court heard the case on 3 September 2019 and delivered its judgment on 31 January 2020. The court addressed various issues, including the provision of copies of actual invoices rendered, the preparation time payable for the commencement of proceedings, the award of costs for the application for consolidation and discovery, the payment for the preparation of affidavits, the appearance on 2 December 2018, reasonable disbursements, and offsets in relation to unsuccessful interlocutory applications.

The court ruled that Ms Kinney should provide copies of actual invoices rendered, but the court was satisfied with the undertaking given by Ms Kinney’s solicitor and an affidavit by Ms Kinney confirming that each item of costs sought by the plaintiff had been incurred. The court allowed the three days claimed under the 2B scale for the preparation time payable for the commencement of proceedings. The court found that costs should lie whether they fall on the application for consolidation and discovery, and awarded no costs to either party on the application of 22 January 2018. The court ordered that two and a half days for the preparation of affidavits was appropriate and ordered the three days claimed under band B to be appropriate for the appearance on 2 December 2018. The court approved payment of Mr Parson’s fees and expenses as reasonable disbursements and directed the plaintiff’s counsel to submit a revised disbursements schedule for approval by the Registrar. The court made an overall deduction of $10,000 in respect of the unsuccessful interlocutory applications made by Ms Kinney.

The court granted the plaintiff's claim for an additional three memoranda filed in respect of costs and ruled that costs should be paid following the determination of all outstanding issues between the parties. The plaintiff is entitled to 2B costs, with the adjustments as directed and ordered in this judgment.

Orders