Levett v Village Accommodation Group Limited

[2013] NZHC 32

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2012-485-1692

2013] NZHC 32

BETWEEN  MARK WHITAKER LEVETT AND RNM INDEPENDENT TRUSTEE CO LIMITED AS TRUSTEES OF THE GARVEY'S CREEK WORKERS PENSION FUND Plaintiffs

ANDVILLAGE ACCOMMODATION GROUP LIMITED

Defendant

Judgment:      31 January 2013

JUDGMENT AS TO COSTS OF ASSOCIATE JUDGE D.I. GENDALL

Under r 11.5 of the High Court Rules I direct the Registrar to deliver this judgment at 3.00 pm on 31 January 2013.

Solicitors:           Thomas Dewar Sziranyi Letts, Solicitors, PO Box 31-240, Lower Hutt

MW LEVETT AND RNM INDEPENDENT TRUSTEE CO LIMITED AS TRUSTEES OF THE GARVEY'S CREEK WORKERS PENSION FUND V VILLAGE ACCOMMODATION GROUP LIMITED HC WN CIV-

2012-485-1692 [31 January 2013]

[1]      The  plaintiff ’s  summary  judgment  application  in  this  proceeding  was determined in a judgment given by me on 14 December 2012.  In that judgment an order was made dismissing the summary judgment application and an award of costs was made to the defendant.  This costs award was calculated on a category 2B scale basis (with certification for one counsel only) together with disbursements as fixed by the Registrar.

[2]      Counsel for the defendant has now filed a memorandum dated 15 January

2013 setting out a schedule of costs it claims together with a disbursement.   That schedule totals $8,458.75 for costs and $108.08 for disbursements.   It is for these amounts which the defendant seeks a costs and disbursements order here.

[3]      In   reply   to   the   defendant’s   memorandum,   the   plaintiff   has   filed   a memorandum on costs dated 22 January 2013.  From this memorandum, it appears that  no  objection  is  taken  to  all  the  matters  contained  in  the  defendant’s memorandum with the exception of one item described as Item 25 “Preparation by applicant of bundle for hearing $1,990.00 x 0.6 days = $1,194.00.”

[4]      In the defendant’s memorandum, it is clear the defendant does seek costs for preparing the bundle of authorities and advises that although this bundle would normally be prepared by the applicant plaintiff, in this case the plaintiff did not prepare the bundle and the defendant was therefore obliged to take on this task at its cost for which it now seeks reimbursement.

[5]      In response the plaintiff, who is a self-represented litigant, disputes that any separate bundle of authorities was required from him and notes that no specific mention  of  a  bundle  of  authorities  was  made  by  His  Honour Associate  Judge Matthews in the direction given by him on 24 September 2012 as to the observance of r 7.39 by the parties.

[6]      Notwithstanding this,  it is  clear from  r 7.39(3)  High  Court  Rules  that  a synopsis of argument required to be filed and served by the applicant  here (the plaintiff) must in terms of that provision:

(a)        identify the general nature of the case:

(b)        include a chronology of the material facts:

(c)        outline the applicant’s principal submissions:

(d)        be accompanied by or have annexed to it –

i.           an indexed and paginated set of relevant documents; and

ii.          a list of authorities.  (emphasis added)

[7]      In  this  case  it  seems  clear  that  the  applicant  plaintiff  did  not  provide  a separate bundle or  accompanying list of authorities with his synopsis.  Instead, the plaintiff states that he did provide a list of authorities in his synopsis of argument and that this should be sufficient in the circumstances here.

[8]      Weighing up all these matters, and under the circumstances prevailing in this case, I take the view that the defendant should not be reimbursed for the $1,194.00 costs claimed on preparing the bundle of authorities it chose to do.   Even if this obligation which initially rested with the plaintiff was not complied with (and there may be some doubt here as to this) a proper course for the defendant in my view was to communicate the requirement to the plaintiffs (particularly given that they were self-represented litigants) and to proceed on that basis.

[9]      For these reasons, I disallow the plaintiff’s claim for $1,194.00 as Item 25 for preparing the bundle of authorities.

[10]     This amount is to be deducted from the total costs claim of $8,458.75 to leave a balance due for costs of $7,264.75.

[11]     As noted above the plaintiff takes no objection to the other items claimed in the schedule of costs and for the $108.08 filing fee disbursement and in my view they are in order.

[12]     That said, costs are awarded to the defendants on their successful opposition

to the plaintiff’s summary judgment application on a category 2B basis totalling

$7,264.75 together with disbursements totalling $108.08.  An order to this effect is now made.

[13]     This costs award is made notwithstanding r 14.8(3) High Court Rules and the decision in NZI Bank Ltd v Philpott [1990] 2 NZLR 403, on the basis noted at [33] of my 14 December 2012 judgment that this action in the High Court was now disposed of, consequent upon the order transferring this proceeding to the District Court. If ultimately the plaintiff’s claim here against the defendant might essentially succeed, then no doubt the present costs award may well be something taken into the overall account by the appropriate court or tribunal at that point.

‘Associate Judge D.I. Gendall’