Lee v Whangarei District Council - [2016] NZHC 560

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV-2014-488-94 [2016] NZHC 560

BETWEEN
OLIVIA WAI YEE LEE

Plaintiff

AND

WHANGAREI DISTRICT COUNCIL Defendant

ROBIN FREDERICK LITTLEJOHN Third Party

On thepapers:

Appearances:

Plaintiff in person
F Divich and H Waldron for Defendant
A G Jackson for Third Party

Judgment:

5 April 2016

COSTS JUDGMENT OF ASSOCIATE JUDGE R M BELL

This judgment was delivered by me on 5 April 2016 at 11:00am
pursuant to Rule 11.5 of the High Court Rules

…………………………………………………….
Registrar/Deputy Registrar

Solicitors:
Heaney & Partners (F Divich/H Waldron) Auckland, for Defendant
Perkinson Law (S W Perkinson) Whangarei, for Third Party

Counsel:
Anthony G Jackson, Whangarei, for Third Party.

LEE v WHANGAREI DISTRICT COUNCIL [2016] NZHC 560 [5 April 2016]

[1] On 10 November 2015 I gave summary judgment to the Whangarei District Council against Ms Lee and awarded it costs. The parties have not agreed on costs. Memoranda have been filed. I decide costs on the papers, after asking for further submissions on some aspects.

[2] Ms Lee has filed an appeal against my summary judgment. She submits that I should not decide costs until the Court of Appeal has given its decision on her appeal against my judgment. The fixing of costs should not be deferred. In general, the fixing of costs should be expeditious.1 A decision on costs will not stand in the way of Ms Lee running her appeal against my judgment. It will also give her the opportunity to ask the Court of Appeal to review my costs decision, if she considers it to be wrong. Invariably there are difficulties in determining costs long after a decision has been given.

[3] Ms Lee also submits that I should not fix costs against her because of her poor financial position and because of the hardship she would suffer in having to pay costs. Such considerations are generally irrelevant under the principles in r 14.2 of the High Court Rules. The District Council submitted that the court should exercise its discretion under r 14.6 to award increased costs. On that, Ms Lee’s status as a litigant in person is to a certain extent relevant, and I take that factor into account in considering the council’s application for increased costs. But those considerations do not apply to deprive the council of costs altogether.

[4] Mr Littlejohn, the third party, appeared at the hearing of the council’s summary judgment application but did not otherwise take an active part in that application. With the failure of Ms Lee’s case against the council, the council’s third party claim against Mr Littlejohn has fallen by the wayside. Counsel for Mr Littlejohn has advised that he does not seek costs. It is accordingly not necessary
to consider where the burden of any costs claimed by the third party should fall.

1 High Court Rules, r 14.2(g).

[5] The proceeding is category 2 under r 14.3. For the calculation of scale costs under rr 14.4 and 14.5, the council claims $48,159.00.…

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.

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Details

Case: [2016] NZHC 560
Decision Date: 5 April 2016

CaseChat Overview and Summary

In the High Court of New Zealand, Olivia Wai Yee Lee, the plaintiff, contested a claim against the Whangarei District Council, the defendant, with Robin Frederick Littlejohn as the third party. The dispute centered on costs incurred following a summary judgment awarded to the Whangarei District Council against Lee, with subsequent disagreements over the allocation of these costs. The court was tasked with deciding the appropriate costs for the proceedings, including scale costs, disbursements, and any additional costs that might be warranted given the circumstances of the case.

The primary legal issues revolved around the calculation of scale costs and disbursements, the appropriateness of awarding increased costs to the council, and whether the court should consider Lee's financial hardship and lack of legal representation in its decision. The court had to evaluate the submissions from both parties regarding the specific steps taken during the litigation process and whether these steps warranted the costs claimed by the council. Additionally, the court considered the council's application for increased costs based on Lee's actions, which the council deemed frivolous and improper.

The court reasoned that while Lee's lack of legal representation and financial hardship were noteworthy, these factors did not absolve her from paying the costs she incurred. The court found that the council's claims for certain steps were either overstated or improperly categorized, leading to adjustments in the scale costs. Regarding the council's application for increased costs, the court acknowledged the council's arguments but also noted the council's prior conduct, which had potentially contributed to the circumstances that led Lee to continue with her claim despite clear indications of its futility. The court decided to award a 25% increase in costs for the summary judgment application but did not find the circumstances sufficiently egregious to justify a higher increase or indemnity costs.

The final orders of the court were that Lee was to pay the council's costs of $42,579 plus disbursements of $4,338.11, totaling $46,917.11. The court also noted that Lee's appeal against the summary judgment did not affect the urgency of determining the costs, as she could seek a review of the costs decision if she deemed it necessary.

Orders