Kiwi Trustee Limited v Lin

[2017] NZHC 1342

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-000002 [2017] NZHC 1342

UNDER

the Property Law Act 2007 and the

Declaratory Judgments Act 1908

IN THE MATTER

of an application to determine and enforce an easement, both legal and equitable, and for resulting claim in nuisance both for diminution in value and consequential and foreseeable losses

BETWEEN

KIWI TRUSTEE LIMITED Plaintiff

AND

QING LIN
First Defendant

SCOTT THOMAS NABARRO Second Defendant

Hearing:	On the papers
Judgment:	19 June 2017

JUDGMENT OF WYLIE J [AS TO COSTS]

This judgment was delivered by Justice Wylie

On 19 June 2017 at 9.30am Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

Solicitors/counsel:

Henley-Smith Law/P F Chambers, Auckland

Lewis Callanan/K Davenport QC, Auckland

KIWI TRUSTEE LIMITED v LIN [2017] NZHC 1342 [19 June 2017]

[1]      I refer to my teleconference minute dated 29 May 2017. As I there noted, the defendants were entitled to the costs of the adjournment application which was called before me on that day.

[2]      Mr Chambers has filed an updated report as directed by me.  It attests as to circumstances which resulted in the timetable in this case not being complied with, and the trial having to be adjourned.  I do not need to outline those circumstances.  It is common ground that they should be kept confidential.

[3]      There are two issues for the Court – first, the quantum of costs, and secondly, who should pay those costs.

[4]      I agree with Ms Davenport QC, for the defendants, that there is no category of costs which directly equates to the steps taken to procure the adjournment.  I also agree that the nearest equivalent categories are items 11 and 13 noted in the third schedule to the High Court Rules.  Those rules, in the circumstances applicable in this case, equate to 0.7 of a day.   On a 2B rate, that would equate to costs of

$1,561.00.

[5]      The defendants seek an uplift, to reflect the fact that no contact was made by the plaintiff’s counsel with either the Court, or the defendants, to advise of the difficulties which ultimately arose.

[6]      While Mr Chambers did not extend to the Court, or to the defendants, the courtesy of advising of the difficulties he was experiencing, I have sympathy for his position.  Nevertheless, I consider that some uplift is required.  There were multiple breaches of timetable orders over time and the fixture had to be vacated.   The difficulties Mr Chambers was facing only came to a head when the defendants complained and I convened a telephone conference.   I consider it appropriate to uplift the costs award by $250.00.

[7]      Accordingly,  I  award  costs  in  favour  of  the  defendants  in  the  sum  of

$1,811.00.

[8]      There is no issue as to who should pay the costs.  Mr Chambers accepts that the award should be directed against him personally.

[9]      I make an order accordingly.

Wylie J