Lee v Composite Cladding and Signage Manufacture and Installations Limited

[2013] NZHC 1652

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-5491 [2013] NZHC 1652

UNDER  s 72 of the District Courts Act 1947

IN THE MATTER OF       an appeal from the decision of the District

Court dated 16 August 2012

BETWEEN  OLIVIA LEE Appellant

ANDCOMPOSITE CLADDING AND SIGNAGE MANUFACTURE AND INSTALLATIONS LIMITED Respondent

Hearing:                   (on the papers)

Counsel:                  G J Beresford and A Gormack for the Appellant

D L Marriott and R G Espie for the Respondent

Judgment:                2 July 2013

JUDGMENT OF WOODHOUSE J (Costs)

This judgment was delivered by me on 2 July 2013 at 4:00 p.m. pursuant to r 11.5 of the High Court Rules 1985.

Registrar/Deputy Registrar

……………………………………

Counsel / Solicitors:

Mr G J Beresford and Mr A Gormack, Grimshaws, Solicitors, Auckland

Mr D L Marriott, Barrister, Auckland

Mr R G Espie, Solicitor, Whangaparaoa

LEE v COMPOSITE CLADDING AND SIGNAGE MANUFACTURE AND INSTALLATIONS LIMITED [2013] NZHC 1652 [2 July 2013]

[1]      The appeal was dismissed and costs awarded to the respondent.[1]   The parties have been unable to agree on quantum. There are two issues:

[1] Lee c Composite Cladding and Signage Manufacture and Installations Limited [2013] NZHC 354.

(a)      The appellant submits that the respondent is not entitled to some items claimed, as they are not steps specified in schedule 3 of the High Court Rules or otherwise justified.

(b)The appellant requested copies of the invoices from the respondent’s counsel and solicitor to confirm that scale costs did not exceed actual costs.  The respondent, notwithstanding a Court direction to produce copies of invoices, has not fully complied.

[2]      The  appellant  has  also  sought  an  order  that  the  costs  judgment  not  be enforced for 9 months.

Schedule 3 steps

[3]      The respondent has claimed some schedule 3  steps that apply to  a civil proceeding initiated in the High Court in addition to matters specified for appeals (items 52-58). The respondent is not entitled to the following:

(a)      Commence defence: schedule 3, step 2: $3,980.  This does not apply to an appeal.  However, the respondent is entitled to an allowance for step 53, “commencement of response to appeal”, in a sum of $995.

(b)      Preparation for the first case management conference: step 10: $796.

This could apply, as specified in step 54 of schedule 3 (which is a cross-reference to step 10 in schedule 3).   However, the appellant submits   that   this   item   should   not   be   allowed   because   the memorandum for the first case management conference was prepared on behalf of the appellant. The respondent has not challenged this.

(c)      There is a claim of $2,985 for submissions with reference to step 24 in schedule 3.  This applies to a civil proceeding commenced in the High

Court, not to an appeal.  This item is not allowed.  In any event, it is covered by the respondent’s claim for $5,970 for preparation, which is not challenged.  (The reference in the respondent’s claim is to step 33 which applies to a High Court civil proceeding, but there is the same allowance for an appeal in step 56.)

(d)      There is a claim of $2,985 for second counsel at the appeal hearing.

This appeal does not justify an award for second counsel.

[4]      Consequently, the scale costs allowed for the appeal are as follows:

$ Step 53: commencement of response  995.00

Step 54: appearance at callover  398.00

Step 56: preparation of written submissions  5,970.00

Step 57: appearance of principal counsel  5,970.00

$13,333.00

[5]      There is also a claim for costs on the appellant’s unsuccessful interlocutory application to adduce further evidence on the appeal.  I agree with Mr Beresford’s submission that there is no basis for the claim for $4,975 for an affidavit.  There is also no justification for the costs for sealing an order.

[6]      Costs on the interlocutory application are:

$ Step 23: opposition  1,194.00

Step 24: submissions  2,985.00

Step 25: appearance  497.50

$4,676.50

[7]      The total is, therefore:

$ Interlocutory  4,676.50

Substantive appeal  13,333.00

$18,009.50

[8]      The respondent has also claimed a disbursement of $184.80 for travelling expenses.  This appears to be an expense for junior counsel and also includes cost in travelling to Whangarei in respect of a different proceeding between these parties. This disbursement claim is disallowed.

Respondent’s invoices for legal costs

[9]      Mr Espie, for the respondent, has advised in the most recent memorandum that Mr Marriott’s fees have been paid, but an invoice for Mr Espie’s costs had not been rendered at the date of the memorandum.   A copy of Mr Marriott’s invoice should be produced. As advised in my earlier minute, a party paying costs is entitled to see the invoices to confirm that scale costs do not exceed actual costs, unless there is some good reason for not producing a copy.   Mr Espie has not advanced any reason for not producing a copy.

[10]     The order that the appellant pay costs of $18,009.50 is conditional upon the respondent providing the appellant with copies of the invoices for the respondent’s costs on the appeal.  To avoid any doubt, I confirm that there is no liability for the appellant  to  pay costs  until  copies  of the invoices  have  been  produced.    Upon production of copies of the invoices the appellant is forthwith to notify the Court and the respondent, by memorandum, whether there is any further issue in respect of costs.  If there is no further issue, then liability for costs will arise subject to deferral of execution dealt with in the next section of this judgment.  If there is an issue the question of commencement of liability will be dealt with in a subsequent order.

Deferral of execution of costs judgment

[11]     The  appellant  seeks  an  order  pursuant  to  High  Court  r 17.3(3)  that  no enforcement process be issued in respect of the costs judgment for a period of 9 months.   Reference is made to Hamilton v Papakura District Council.[2]    The respondent has not challenged this application.

[2] Hamilton v Papakura District Council HC Auckland CP391/95, 22 March 1999.

[12]     The grounds for the application are financial hardship.  In addition, I consider that the appellant has been put to unnecessary cost in responding to the respondent’s application for costs.   As will be apparent from the discussion of quantum some items should not have been claimed.  On the other hand a delay of 9 months seems excessive.  The period is based on the time allowed in Hamilton v Papakura District Council, but the costs award in that case was much higher.   There has also been delay by the respondent in pursuing costs, with the most recent memorandum for the respondent having been filed on 6 June 2013 (with a response for the appellant in a memorandum dated 18 June 2013), so that the appellant has already had some 4 months since the judgment.

[13]     Weighing these matters against the respondent’s entitlement to be paid its costs within a reasonable time, I order that no enforcement process may be issued for payment for 3 months after whichever of the following dates is later:

(a)      The date on which the respondent sends to the appellant’s solicitors invoices for costs from the respondent’s counsel and solicitor if those costs exceed scale costs awarded in this judgment and are not otherwise queried by the appellant; or

(b)If those scale costs exceed actual costs, and any issue arises in that regard, the date on which the issue is resolved by further Court order.

Observation

[14]     The  Court  should  not  have  been  drawn  into  determining  the  issues  of quantum and production of invoices.  They are straightforward matters which, on the

basis of the memoranda filed, have been unnecessarily complicated by the approach

adopted on behalf of the respondent.

Woodhouse J