Lough v Taupo Residential Limited
[2017] NZHC 2427
•4 October 2017
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-Ā-KAHU ROHE
CIV 2016-463-0089 [2017] NZHC 2427
BETWEEN GARRY CROSDELL LOUGH and
RUTHVEN SCOTT BLAIR KERR as trustees of the GCL TRUST
Appellants
AND
TAUPO RESIDENTIAL LIMITED First Respondent
WHAKATANE DISTRICT COUNCIL Second Respondent
Hearing: On the papers Counsel:
J P Temm and S A Hickman for Appellants
T R Mounsey for First Respondent
H M Rice and S A Beattie for Second RespondentJudgment:
4 October 2017
COSTS JUDGMENT OF PETERS J
This judgment was delivered by Justice Peters on 4 October 2017 at 3 pm pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date: ...................................
Solicitors: Cargill Stent Law Limited, Taupo Malcolm Mounsey Clarke, Taupo Rice & Co, Auckland
Counsel: J P Temm, Rotorua
LOUGH v TAUPO RESIDENTIAL LTD [2017] NZHC 2427 [4 October 2017]
[1] I refer to the parties’ memoranda as to costs dated 16, 22 and 23 February and
7 March 2017. These memoranda followed the appellants’ withdrawal, on
15 February 2017, of their application to adduce further evidence on appeal dated
6 October 2016 (“application”).
Background
[2] On 23 August 2016, Toogood J made timetabling orders for determination of
the appellants’ appeal from a judgment given in the District Court.
[3] The appellants did not comply with those timetabling orders, a matter which the first and second respondents (“TRL” and “WDC”) drew to the Court’s attention by memorandum dated 20 September 2016.
[4] On 6 October 2016, the appellants filed amended grounds of appeal, the application and an affidavit in support. The application was given a fixture for
1 December 2016 (“hearing”).
[5] The issue of the appellants’ non-compliance with Toogood J’s orders was to
come before Associate Judge Christiansen on 11 October 2016.
[6] On or about 7 October 2016, TRL and WDC proposed a timetable for the steps required in advance of the hearing. The appellants consented to the timetable in their memorandum of 10 October 2016. The timetable required TRL and WDC to file and serve their notices of opposition and affidavits in support by 2 November
2016, and the appellants and respondents to file and serve submissions by 21 and
28 November 2016 respectively.
[7] In [7] of their 7 October 2016 memorandum, TRL and WDC sought costs of, as I understand it, $2,899 each. These costs were said to be for preparing and filing the memorandum of 20 September 2016 (see above); for preparing and filing the memorandum of 7 October 2016; and for “preparation for the above and costs involved in conferring and progressing matters, including trying to reach a common approach with the appellants – which has proved fruitless”.
[8] In response, the appellants submitted that costs should be reserved.
[9] By minute dated 10 October 2016, Christiansen AJ vacated the hearing on
11 October 2016 and determined that the respondents’ application for costs should be reserved for determination in the cause.
[10] The appellants did not file their submissions by the due date of 21 November
2016.
[11] By memorandum dated 28 November 2016, WDC sought orders vacating the hearing of the application on 1 December 2016 and for costs on filing its 7 October and 28 November memoranda. The former had already been addressed by the Associate Judge in his 10 October minute.
[12] By its memorandum dated 29 November 2016, TRL sought, inter alia, costs in respect of “preparation for attendance at the Interlocutory Hearing on 1 December on a 2B basis”.
[13] By memorandum dated the same day, counsel for the appellants agreed that the hearing should be vacated and proposed that costs be reserved.
[14] Following a telephone conference with counsel on 29 November 2016, I vacated the hearing and ordered the appellants to pay costs on the adjournment.1 I declined WDC’s submission that I determine costs associated with the memorandum of 7 October 2016.
[15] By letter dated 16 December 2016, the appellants advised the respondents that they proposed to abandon the application. The appellants confirmed this advice on 10 February 2017, and followed it with the notice of withdrawal to which I have
referred to in [1] above.
1 Minute dated 30 November 2016.
Costs
TRL
[16] TRL seeks the following.
[17] First, costs of $1,561 in respect of the matters before Christiansen AJ on
10 October 2016. Christiansen AJ reserved those costs and there is no basis on which I can revisit that order.
[18] Secondly, costs of $1,561 comprising TRL’s memorandum of 29 November
2016 and the appearance at the telephone conference that same day. As stated in [14] above, I awarded costs to the respondents on the adjournment. The costs TRL seeks are appropriate. As I understand it, TRL has not received a response to its request that the appellants pay these costs. The appellants should pay them forthwith.
[19] Thirdly, costs and disbursements on the abandonment totalling $11,929. TRL also seeks an uplift of 25 per cent. There is no basis for ordering an uplift. There is no suggestion that the making of the application was an abuse of process. Moreover, although counsel for TRL says in his memorandum that he is acting for six respondents, as I understand it the appeal is only brought against one of those respondents.
[20] Of the costs sought, I allow the notice of opposition and the preparation of submissions. I also allow the disbursement claimed for filing the notice of opposition.
[21] There is no basis for the claim in respect of affidavits, for which TRL claims
2.5 days. The matter before the Court was an interlocutory application and the time spent preparing any affidavits forms part of the allowance for step 23 of Schedule 3 of the High Court Rules, being the filing of opposition. On the face of the memorandum, TRL appears to have based its claim in respect of preparation of briefs or affidavits as if it were preparing for trial, when it was not.
[22] I also do not understand the basis for TRL’s claim for obtaining judgment without appearance. No judgment was obtained.
[23] Nor do I allow TRL any sum for filing its memorandum of 22 February 2017 in support of costs. Again, any claim is treated as part and parcel of opposition. There is no provision in Schedule 3 for any such award. Moreover, TRL has been successful in part only.
[24] I decline to make the unless order sought by TRL in [11] of its memorandum of 22 February 2017. It is open to TRL to seek such an order if matters arise which make it appropriate to do so. The matters to which TRL refers in its memorandum do not warrant the making of an unless order at present. Moreover, the appellants will be well aware that costs orders are to be paid forthwith.
WDC
[25] WDC has filed two memoranda, dated 16 and 23 February 2017. The effect of the memorandum of 23 February 2017 was to broaden WDC’s application for costs, WDC having received TRL’s memorandum.
[26] Taking WDC’s memoranda together, I allow WDC: (a) its notice of opposition and filing fee; and
(b) the costs sought in [8] of its memorandum of 23 February 2017.
[27] The comments I made regarding TRL’s applications for costs on the matters before Christiansen AJ on 10 October 2016 and on its briefs of evidence/affidavits apply equally to WDC. Likewise the application for an unless order and WDC’s claim for the costs of preparation and filing of the memorandum of 16 February
2017.
[28] Also, although not sought in its 16 February 2017 memorandum, WDC has included a claim for a portion of the preparation of written submissions in opposition to the application. In support of that claim WDC has produced a single page of its
draft submission covering basic introductory matters. I decline to make any award of costs for that one page.
Conclusion
[29] The parties are to seek to agree any issues as to quantum. Any dispute not so resolved is to be referred to the Registrar for determination.
[30] I ask the Registry to allocate a further case management conference before an
Associate Judge.
Peters J
0
0
0