Lawrence v Glynbrook 2001 Limited HC Dunedin CIV-2009-412-000713

[2011] NZHC 1105

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CIV-2009-412-000713

BETWEEN  D R LAWRENCE Plaintiff

ANDGLYNBROOK 2001 LIMITED First Defendant

ANDCRAIGADEAN DAIRY FARM LIMITED Second Defendant

ANDC W LAWRENCE Third Defendant

ANDA N W LAWRENCE Fourth Defendant

ANDB D LAWRENCE Fifth Defendant

ANDA N W LAWRENCE AND B D LAWRENCE AS TRUSTEES OF THE ANW LAWRENCE FAMILY TRUST Sixth Defendants

ANDMARBLE HILL DAIRIES LIMITED Seventh Defendant

Hearing:         (On the papers)

Counsel:         H McIntosh for Plaintiff

D Tobin for Defendants

Judgment:      12 September 2011 at 2:45 PM

COSTS JUDGMENT OF VENNING J

This judgment was delivered by me on 12 September 2011 at 2.45 pm, pursuant to Rule 11.5 of the

High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Russell McVeagh, PO Box 10-214, Wellington

D R LAWRENCE V GLYNBROOK 2001 LIMITED (costs) HC DUN CIV-2009-412-000713 12 September

2011

Downie Stewart, PO Box 1345, Dunedin 9058

Copy to:           D R Tobin PO Box 1424 Dunedin 9054

[1]      The judgment of 21 June 2011 refers.   Orders for costs were made in that judgment essentially following the outcome of the various interlocutory applications with costs awarded on a 2B basis.  Counsel, however, have been unable to agree on the resulting calculation. They are apart on a number of matters of principle.

[2]      I deal with those matters as follows.

Item 4.1

[3]      The plaintiff seeks costs on the notice to answer interrogatories.  I agree with Mr Tobin that the costs on the notice itself, just as the costs in  answering the interrogatories,  are  costs  that  should  ultimately  follow  the  outcome  of  the proceeding.  The costs associated with the notice and compliance with it are different and distinct to the costs on the application for an order from the Court.  I disallow the plaintiff’s application for costs on the notice.

Item 4.12

[4]      The plaintiff seeks costs for each of the three applications he succeeded on. Mr Tobin submits that that amounts to “triple dipping” as all applications were joined in the same notice of application.  I agree with Mr McIntosh’s submissions on this point.  While the applications were all joined in one notice of application, each of the applications was separate and distinct.   It required consideration as to the evidence to be filed in support of each application and whether each application should properly be brought.   They were conveniently included in one notice of application (which is to be encouraged).  That led to a cost saving on the filing fee disbursement.  The plaintiff is entitled to costs on each application that he brought and succeeded on.

Hearing time

[5]      Approximately a half day was required to hear all applications that were argued before the Court.  Although the defendants succeeded in relation to the two applications that were argued in relation to security for costs, they were effectively two sides of the same coin.   The plaintiff succeeded on the other application for discovery.   In my judgment the fair and just outcome is for the parties to have a quarter of a day allowance each for the preparation and hearing of the applications they succeeded on.

Item 4.17

[6]      The plaintiff seeks some allowance for the late consent by the defendants to the applications for particulars and interrogatories and the need to prepare for those hearings.  Mr Tobin opposes that and submits that there should be no allowance for preparation time for applications that were not heard.   In my judgment some allowance should be made for the costs the plaintiff was put to in relation to preparation  given that the matters  were compromised  shortly in  advance of the hearing.  The appropriate course is to provide a modest allowance of 0.2 days for the discovery and interrogatory applications.

Travel costs

[7]      The  plaintiff  seeks  travel  costs  of  counsel  on  the  applications  he  was successful in.  That is opposed by the defendant.  Mr Tobin submits that the plaintiff was only successful in one quarter of the matters before the Court.

[8]      For  the  reasons  given  above  I  consider  the  plaintiff  is  entitled  to  a contribution towards counsel’s travel costs.  It was appropriate that counsel familiar with  the  case  deal  with  it.    Consistent  with  the  allocation  in  relation  to  the applications that were argued before the Court an allowance of half of the disbursements for travel costs will be allowed.

[9]      The end result is as follows:

Plaintiff’s costs in relation to particulars, interrogatories and discovery applications:

HCR Schedule 3 reference	Step in proceeding	Time allocated	Daily recovery rate	Costs
4.10	Filing memorandum for case management conference or mentions hearing	0.4	1,880	752.00
4.11	Appearance   at    case   management conference	0.3	1,880	564.00
4.12	Preparing and filing interlocutory application (excluding summary judgment application) and supporting affidavits	1.8 (0.6 x 3)	1,880	3,384.00
4.14	Preparation for hearing of defended interlocutory application (excluding summary judgment application)	0.25	1,880	470.00
4.15	Appearance at hearing	0.25	1,880	470.00
4.17	Appearance  at  mentions  hearing  or callover	0.2	1,880	376.00
Sub total	$6,016.00
Disbursements
Travel costs				$423.10
Filing				$613.33
TOTAL				$7,052.43

Defendant’s costs on the security applications:

HCR Schedule 3 reference	Step in proceeding	Time allocated	Daily recovery rate	Costs
4.10	Filing memorandum for case management conference or mentions hearing	0.4	1,880	752.00
4.11	Appearance   at    case   management conference	0.3	1,880	564.00
4.12	Preparing and filing interlocutory application (excluding summary judgment application) and supporting affidavits	0.6	1,880	1,128.00
4.13	Preparation and filing opposition to interlocutory application (excluding summary judgment application) and supporting affidavits	0.6	1,880	1,128.00
4.14	Preparation for hearing of defended interlocutory application (excluding summary judgment application)	0.25	1,880	470.00
4.15	Appearance at hearing	0.25	1,880	470.00
Sub total	$4,512.00
Disbursements
Filing   fee   of $613.33				$613.33
TOTAL	$5,125.33

Result

[10]     In accordance with r 14.17 the defendants are to pay the plaintiff the net amount of $1,927.10 by way of costs.

Venning J