Kinnon v Hong

[2022] NZHC 3499

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-30

[2022] NZHC 3499

BETWEEN

DOUGLAS MURRAY KINNON and

AVRYL MARGARET KINNON as trustees of the Cedar Lodge Trust

Plaintiffs

AND

BOON GUNN HONG

First Defendant/Counterclaim Plaintiff

NOMINEES AND TRUSTEES LIMITED
Second Defendant

DOUGLAS MURRAY KINNON
First Counterclaim Defendant

JAALA FERNANDE DYER

Second Counterclaim Defendant

Hearing:

On the papers

Counsel:

MC Nicholls for the Plaintiffs and First and Second Counterclaim Defendants

BG Hong, First Defendant and Counterclaim Plaintiff in person

Judgment:

16 December 2022

COSTS JUDGMENT OF ASSOCIATE JUDGE SUSSOCK

This judgment was delivered by me on 16 December 2022 4pm

pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Solicitors:

Martin Nicholls Ltd, Kerikeri

Copy to:
Boon Gunn Hong, Auckland

KINNON v HONG [2022] NZHC 3499 [16 December 2022]

Introduction

[1]                  The plaintiffs and counterclaim defendants (Plaintiffs) apply for costs following their successful opposition to the applications by the defendant and counterclaim plaintiff (Defendant) for leave to proceed with summary judgment applications, for security for costs and in respect of the Plaintiffs’ successful application for further and better particulars.1

[2]                  The Plaintiffs seek scale costs of $14,220.50 calculated on a 2B basis for all steps except the filing of the Plaintiffs’ opposition to the Defendant’s applications for summary judgment and security for costs which is claimed on a 2C basis.

Relevant costs principles

[3]                  The starting point is that costs are at the discretion of the Court.2 Although the discretion is wide, it is not unfettered. Rule 14.2 of the High Court Rules 2016 sets out the general principles as follows:

(a)the party who fails with respect to a proceeding or an interlocutory application should pay costs to the party who succeeds;

(b)an award of costs should reflect the complexity and significance of the proceeding;

(c)costs should be assessed by applying the appropriate daily recovery rate to the time considered reasonable for each step reasonably required in relation to the proceeding or interlocutory application;

(d)an appropriate daily recovery rate should normally be two-thirds of the daily rate considered reasonable in relation to the proceeding or interlocutory application;

(e)what is an appropriate daily recovery rate and what is a reasonable time should not depend on the skill or experience of the solicitor or counsel involved or on the time actually spent by the solicitor or counsel involved or on the costs actually incurred by the party claiming costs;

(f)an award of costs should not exceed the costs incurred by the party claiming costs;

(g)so far as possible the determination of costs should be predictable and expeditious.

1      Kinnon v Hong [2022] NZHC 1828.

2      High Court Rules 2016, r 14.1.

[4]                  The Court has previously determined that the proceeding is category 2 for the purposes of costs as provided for by r 14.3.

[5]                  Rule 14.5 then provides that a reasonable time for each step is as set out in Schedule 3 of the High Court Rules by reference…