Mackenzie v Mackenzie

[2024] NZHC 3520

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-004-001148

[2024] NZHC 3520

BETWEEN

HEATHER JOYCE MACKENZIE

Plaintiff

AND

BRIAN DOUGLAS MACKENZIE

Defendant

Judgment:

(On the papers)

22 November 2024

JUDGMENT OF BREWER J

(Costs)

This judgment was delivered by me on 22 November 2024 at 4 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Hunwick Law Ltd (Hamilton) for Plaintiff Badcock Law (Rotorua) for Defendant

MACKENZIE v MACKENZIE [2024] NZHC 3520 [22 November 2024]

Introduction

[1]This is a costs judgment.

[2]On  23  August  2024,  I  gave  judgment  in  favour  of  the  plaintiff,

Ms Heather Mackenzie.¹

[3]       Ms Mackenzie sued the defendant, Mr Brian Mackenzie, for a debt of $190,000 plus accrued interest. The defendant pleaded that the debt was not owed to the plaintiff, but to her ex-husband, Mr Malcolm Mackenzie. I found for the plaintiff. Accordingly, the defendant is liable for the debt plus interest at a rate of eight per cent.²

[4]In my judgment, I concluded:³

The defendant is liable to pay the plaintiff $190,000 plus interest at eight per cent. I will not attempt to calculate the interest sum. If the parties cannot agree on the arithmetic, then the point of dispute should be referred to me by memorandum for resolution.

The plaintiff is entitled to costs. Memoranda are to be filed no later than 20 September 2024.

[5]       On 18 September 2024, the plaintiff filed submissions on interest and costs. She seeks interest of $94,797.20 plus $41.64 per day from the date of judgment until payment. She also seeks scale costs on a 2B basis, totalling $25,442.50, and disbursements of $501.84.

[6]       The defendant filed submissions on 25 September 2024. He submits that interest to the date of judgment is $79,415.67. He makes no submission as to interest payable from the date of judgment. The defendant does not oppose costs, but objects to several of the steps claimed.

Interest

[7]I reproduce the plaintiff’s table setting out her calculation of interest:

¹      Mackenzie v Mackenzie [2024] NZHC 2377.

²      At [24] and [33]. Pursuant to s 22(2) of the Interest on Money Claims Act 2016, the interest rate is as agreed by the parties.

³      At [33]–[34].

Balance owing	Period	Days	Interest accrued
$250,000	1 July 2019 to 21 July 2019	21 days	$1,150.59
$244,000	22 July 2019 to 16 Aug 2019	26 days	$1,390.46
$242,000	17 Aug 2019 to 29 Aug 2019	13 days	$689.52
$240,000	30 Aug 2019 to 8 Oct 2019	40 days	$2,104.10
$238,000	9 Oct 2019 to 29 Oct 2019	21 days	$1,095.45
$190,000	30 October 2019 to 29 October 2023	5 years	$76,000.00
$190,000	30 October 2023 to 23 August 2024	297 days	$12,367.08
Total			$94,797.20
24 August 2024 until payment	$41.64 per day

[8]       I also reproduce the content of the defendant’s table setting out his calculation of interest:

Principal	Period	Days	Interest accrued
$250,000	1 July 2019 to 21 July 2019	20 days	$1,095.89
$244,000	22 July 2019 to 16 Aug 2019	25 days	$1,336.99
$242,000	17 Aug 2019 to 29 Aug 2019	12 days	$636.49
$240,000	30 Aug 2019 to 8 Oct 2019	39 days	$2,051.51
$238,000	9 Oct 2019 to 29 Oct 2019	20 days	$1,043.29
$190,000	30 October 2019 to 23 August 2024	1759 days	$73,251.51
Total			$79,415.67

[9]       While these amounts differ by over $15,000, I adopt the defendant’s calculation of the interest payable for the period of 30 October 2019 to 23 August 2024. Not only has the plaintiff’s counsel expressed the period between 30 October 2019 and 29 October 2023 in years rather than days, he has misstated the number of years that elapsed in that period. Rather than five years, as claimed, that period encompassed only four.

[10]     I do, however, accept the plaintiff’s calculations on the periods preceding 30 October 2019 as the defendant’s calculation of the number of days has omitted one day from each calculation.

[11]The interest payable to 23 August 2024 is calculated as follows:

Principal	Daily interest	Period	Days	Interest accrued
$250,000	$54.79	1 July 2019 to 21 July 2019	21 days	$1,150.59
$244,000	$53.48	22 July 2019 to 16 Aug 2019	26 days	$1,390.48
$242,000	$53.04	17 Aug 2019 to 29 Aug 2019	13 days	$689.52
$240,000	$52.60	30 Aug 2019 to 8 Oct 2019	40 days	$2,104.00
$238,000	$52.16	9 Oct 2019 to 29 Oct 2019	21 days	$1,095.36
$190,000	$41.64	30 October 2019 to 23 August 2024	1760 days	$73,286.40
Total				$79,716.35

[12]     Accordingly, the defendant is to pay the plaintiff $79,716.35 in interest to 23 August 2024. Interest will continue to accrue at the rate of eight per cent until the debt is paid in full.

[13]     It is vexing that the Court is required to recall its secondary school mathematics lessons.

Costs

[14]     These proceedings commenced in the District Court before being transferred to this Court. Accordingly, the plaintiff seeks costs under both the District Court Rules 2014 and the High Court Rules 2016. As the successful party in this proceeding, the plaintiff is entitled to costs under both.⁴

[15]     Before setting out the costs to which the plaintiff is entitled, I note that she seeks to recover costs for several allocations to which she has no entitlement. As the defendant has observed in his submissions, the plaintiff has thrice claimed costs for a “Notice of response by defendant”.⁵ The plaintiff is not entitled to claim costs in respect of this time allocation.

[16]     The defendant also takes exception with the plaintiff’s claims under the High Court Rules for the following:

⁴      High Court Rules 2016, r 14.2(1)(a); and District Court Rules 2014, r 14.2(1)(a).

⁵      District Court Rules, sch 4 cl 2A.

(a)Memorandum dated 11 October 2022;

(b)Joint memorandum dated 16 October 2022; and

(c)Joint memorandum dated 15 July 2023.

[17]     The defendant submits that these memoranda were not filed with the High Court and cannot therefore be claimed for. According to my clerk, there are no memoranda on the High Court file that correspond to those dates. However, there are several memoranda filed by the plaintiff:

(a)joint memorandum seeking transfer dated 21 September 2021;

(b)memorandum for CMC dated 11 October 2023;

(c)joint memorandum re progress of matter dated 20 November 2023; and

(d)joint memorandum for callover dated 12 July 2024.

[18]     Although the memorandum dated 11 October 2023 included an erroneous date of 11 October 2022 on its cover page, I am prepared to accept that this was one of the memoranda referred to in the plaintiff’s claim.

[19]     I cannot find a memorandum of “16 October 2022” and, accordingly, I do not allow the plaintiff’s claim for this allocation.

[20]     While the joint memorandum dated 12 July 2024 also referred to the date 15 July 2024 on the cover page (that being the date of the callover), it would be a stretch to assume that this is another typographical error by the plaintiff. I do not accept that this was the memorandum referred to in the plaintiff’s claim.

[21]     I note the plaintiff did not claim for the joint memorandum dated 20 November 2023, but the defendant has said that it should be included in the determination of costs.

[22]     I set out the allocations for which the plaintiff is entitled to claim costs in the following table:

Item	Step	Time allocation	Cost
District Court
1	Commencement of proceedings	1.5	$2,865
9.8	Filing and serving joint memorandum in anticipation of judicial conference	0.25	$477.50
9.8	Filing and serving joint memorandum in anticipation of judicial conference	0.25	$477.50
9.8	Filing and serving memorandum in anticipation of judicial conference	0.25	$477.50
9.8	Filing and serving memorandum in anticipation of judicial conference	0.25	$477.50
High Court
11	Filing memorandum for first or subsequent case management conference or mentions hearing	0.4	$956
11	Filing memorandum for first or subsequent case management conference or mentions hearing	0.4	$956
3	Reply	0.8	$1,912
33	Preparation of briefs, list of issues, authorities, and agreeing common bundle	1	$2,390
33A	Additional allowance for whichever party prepared common bundle	0.5	$1,195
33B	Preparation for hearing	1	$2,390
34	Appearance at hearing for sole or principal counsel	0.75	$1,792.50
Total			$16,366.50

[23]Although the plaintiff’s schedule of disbursements described disbursements of

$4,181.84, the disbursements claimed are $501.84. These are not opposed by the defendant.

Orders

[24]     Mr Brian Mackenzie is to pay Ms Mackenzie $79,716.35 in accrued interest on the debt owed. Interest will continue to accrue at a rate of eight per cent until the debt is paid in full.

[25]     Mr Brian Mackenzie is to pay to Ms Mackenzie costs in the sum of $16,366.50 and disbursements in the sum of $501.84.

Brewer J