Link Technology 2000 Limited v Penetito HC Wellington CIV-2011-485-1999
[2011] NZHC 1769
•30 November 2011
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2011-485-1999
BETWEEN LINK TECHNOLOGY 2000 LIMITED Applicant
ANDSHANE DEAN PENETITO AND SHARON MARIE ISAAC Respondents
Hearing: On the papers
Counsel: K.R. Smith - Counsel for Applicant
A.J. Knowsley - Counsel for Respondents
Judgment: 30 November 2011 at 3:00 PM
JUDGMENT AS TO COST OF ASSOCIATE JUDGE D.I. GENDALL
This judgment of Associate Judge Gendall is delivered on 30 November 2011 at 3.00 pm under r 11.5 of the High Court Rules.
Solicitors: Peter C Gilbert, Solicitor, PO Box 2420, Wellington
Rainey Collins, Solicitors, PO Box 689, Wellington
LINK TECHNOLOGY 2000 LIMITED V SD PENETITO AND SM ISAAC HC WN CIV-2011-485-1999 30
November 2011
Introduction
[1] On 8 November 2011 I dismissed an application by the applicant to register a second caveat over the respondents’ property under s 148 of the Land Transfer Act
1952. The application under s 148 was brought only on 4 November 2011 and was not served on the respondents’ solicitors until 7 November 2011 (the matter appears to have been attempted to be brought by way of an ex parte application). Initially, on 30 October 2011 the applicant applied for an order that an existing caveat which was registered not lapse under s 145A of the Land Transfer Act 1952. That matter was set down for call before me on 7 November 2011. However, had I not heard the matter until then, the caveat would have already lapsed. The applicant, therefore, wrote to this Court in order to preserve its position. As Duty Judge, Mallon J made interim orders preserving the caveat accordingly on 2 November 2011. However, due to the lateness of the applicant’s application, the caveat had already lapsed. Thus, the application to register a second caveat was brought by the applicant.
[2] In dismissing that application, I directed that costs were awarded to the respondents against the applicant on a category 2B basis together with disbursements as fixed by the Registrar.
[3] Counsel for the respondents, Mr Knowsley, has prepared a schedule of those costs. The schedule seeks costs with regard to both the matter before Mallon J and that before me. In response the applicant now disputes some of the costs claimed and says that there was doubling up of time between the two applications. The total costs claimed by the respondents are $14,852.00 ($4,042.00 for the s 145A application and $10,810.00 for the s 148 application).
[4] I also add, by way of background, that, in defending the s 145A application, the respondents filed a notice of opposition accompanied by two affidavits in this Court and an application requesting an extension of time with accompanying affidavit. For the s 148 application a synopsis of argument that a second caveat not be lodged was filed.
Counsels’ Submissions and My Decision
[5] Mr Knowsley for the respondent submits that this proceeding involved two distinct causes of action. He argues that costs for the s 145A application are dealt
with under that section of schedule 3 of the High Court Rules entitled “Specified originating applications (relating to the relief in respect of statutory demands and caveats)”. He further argues that while the matter was dealt with on the papers, counsel anticipated a hearing and prepared for such a hearing.
[6] Mr Knowsley contends that costs for the s 148 application are dealt with under that section of schedule 3 of the High Court Rules entitled “General civil proceedings”. Therefore, costs claims under the two applications should not be merged. He argues further that counsel prepared separate and full submissions for both applications and costs should be awarded accordingly. At the outset, I comment that those assessments of the characterisation of the proceedings under schedule 3 in my view are accurate.
[7] The respondents’ schedule of claimed costs reads as follows:
First Cause of Action: Section 145A Application
Item Action Days Amount
26Preparing and filing notice of opposition and supporting affidavits.
28Appearance at case management conference: list hearing on 7 November 2011.
29Preparation for hearing of defended specified originating application.
1.6 $3,008.00
0.3 $ 564.00
0.25 $ 470.00
Total $4,042.00
Second Cause of Action: Section 148 Application
Item Action Days Amount
2Commencement of defence by defendant (receiving instructions, researching facts and law, and preparing filing, and serving statements of defence or notice of opposition).
7.4Defendant’s preparation of lists of issues and authorities, selecting documents for common bundle of documents, and all other preparation
$ 3,760.00
$ 3,760.00
8 Preparation for hearing 1 $ 1,880.00
9.1 Appearance at hearing for principal counsel. 0.5 $ 940.00
9.2 Appearance at hearing for second counsel 0.25 $ 470.00
Total $10,810.00
[8] Mr Smith for the applicant submitted that 1.6 days to prepare a notice of opposition and supporting affidavits for the s 145A application is excessive. Further, with regard to the s 148 application, he notes this was served on the respondents’ solicitors only on 7 November 2011. The substantive hearing took place on 8
November 2011. Therefore, claiming five days for preparation and commencement is excessive. Mr Smith further takes issue with the respondents’ claim for second counsel given the complexity of the matter.
[9] Rule 14.1 of the High Court Rules gives the Court a discretion to order costs in relation to proceedings brought in this Court. That discretion is generally to be exercised in accordance with the specific rules contained in rr 14.2-14.10: Glaister v Amalgamated Dairies Ltd [2004] 2 NZLR 606 (CA) at [18]. An objective test is to be applied. Rule 14.2 lists the principles applying to determination of costs. Subrule (a) affirms the principle that the losing party should pay the costs to the successful party. Subrule (b) requires that costs reflect the complexity and significance of the proceedings and refers specifically, therefore, to the categorisation of a proceeding which is provided for in r 14.3. Subrule (c) requires a consideration of each step for which costs are sought and an application of the daily rate having regard to the appropriate band which is to be applied after a consideration of r 14.5(2) and Schedule 3. Subrule (f) provides that an award of costs should not exceed the costs incurred by the party claiming costs. While the Court’s discretion should generally be exercised in accordance with Part 14, departure may be made where there is a reason to the contrary: Mansfield Drycleaners Ltd v Quinny’s Drycleaning (Dentice Drycleaning Upper Hutt) Ltd (2002) 16 PRNZ 662 (CA) at 668. When a departure is to be made from the High Court Rules’ allowances, it is necessary that this be done in a particularised, and principled way: Glaister v Amalgamated Dairies Ltd [2004] 2 NZLR 606 (CA) at [22].
[10] First, I need to say that I consider the respondents’ claims with respect to the s 145A application to be largely justified. Subject to what I say below, all of those items are appropriately claimed given the state of the proceeding approaching the 7
November 2011 hearing.
[11] I do not agree, however, that all of the items claimed with respect to the s 148 application are appropriately claimed. First, no lists of issues or bundle of
documents was received. Therefore, the respondents’ claim under 7.4 is not appropriate. Secondly, I do not consider that these proceedings were of such a nature to warrant a claim for second counsel. Thirdly, the respondents have claimed, in effect, for five and a quarter days’ (as the defended s 145A application became the
8 November 2011 hearing) preparation for the hearing on 8 November 2011. As recorded above the key principles underlying the costs regime are to provide certainty, and a reasonable (as distinct from complete) recovery of costs save in exceptional circumstances: Ward v Virtue HC Auckland CIV-2011-404-2541, 22
November 2011 at [8]. The Rules provide for costs to be awarded according to the nature of the proceeding and the time reasonably required for particular steps, in the circumstances of the particular case.
[12] In the present case, given that the s 148 application was only served on counsel for the respondents a day before the hearing, it cannot be that a time involvement of three and a quarter days’ was spent on responding to that application. To certify an order of that amount would be contrary to r 14.2(f). Further, it cannot be said that such a costs award would be predictable or expedient. Nevertheless, I do accept that some preparation was required. Further, counsel’s submissions were full and helpful which suggests that detail and time was put into those submissions, notwithstanding their short turn around period.
[13] Under all the circumstances here, I consider that two days’ preparation time is a reasonable requirement in relation to these proceedings as I recognise that in order to properly prepare for the matter on 7 November 2011 it was unlikely that counsel could come at the matter “cold”. That figure reflects one day’s preparation for the hearing along with one day’s commencement of the respondents’ defence. I do not consider that two days’ allowance should be given for the commencement of defence along with one day’s preparation given that a large part of the commencement of the respondents’ defence is captured by their preparation for defence of the s 145A application.
[14] I therefore certify costs in the following way:
The s 145A application
Item Action Days Amount
26Preparing and filing notice of opposition and supporting affidavits.
28Appearance at case management conference: list hearing on 7 November 2011.
1.6 $3,008.00
0.3 $ 564.00
Total $3,572.00
The s 148 application
Item Action Days Amount
2Commencement of defence by defendant (receiving instructions, researching facts and law, and preparing filing, and serving statements of defence or notice of opposition).
11 $1,880.00
8 Preparation for hearing 1 $1,880.00
9.1 Appearance at hearing for principal counsel. 0.5 $ 940.00Total $4,700.00
Conclusion
[15] I therefore certify costs in the total amount of $8,272.00. No issue is taken with the disbursements claimed. I therefore certify disbursements in the sum of
$33.69.
‘Associate Judge D.I. Gendall’
1 See my reasoning in [13] for the reason for departure from the ordinary allocation of time for that item.
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