MacKinnon-Johnson v Clark

[2024] NZHC 993

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-002220

[2024] NZHC 993

BETWEEN

JOEL MACKINNON-JOHNSON, EMMA ELIZABETH MACKINNON, and KATIE JOY MACKINNON

Plaintiffs

AND

BELLA ROBERTA CLARK and ROBYN

ANN McCLEARY as administrators of the Estate of Rangiterewai Elizabeth McCleary First Defendants

BELLA ROBERTA CLARK and ROBYN ANN McCLEARY

Second Defendants

KIERAN NALLY

Third Defendant

Hearing:

On the papers

Counsel:

A McDonald for the Plaintiffs

L A Foley for the First and Second Defendants K Burkhart for the Third Defendant

Judgment:

30 April 2024

COSTS JUDGMENT OF ASSOCIATE JUDGE GARDINER

This judgment was delivered by me on 30 April 2024 at 3.30 p.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date.......................................

Kennedys, Auckland Le Pine & Co, Taupo

Pidgeon Judd, Auckland A McDonald, Auckland

MACKINNON-JOHNSON v CLARK [2024] NZHC 993 [30 April 2024]

Introduction

[1]                 The first and second defendants applied for an order striking-out the plaintiffs’ statement of claim in respect of the first, second and sixth causes of action concerning the first and second defendants. The third defendant applied for an order striking out the third, fourth and fifth causes of action of the plaintiffs’ statement of claim, which concerned the third defendant.

[2]                 In a judgment dated 20 December 2023, this Court dismissed both interlocutory applications and indicated a preliminary view that the defendants should pay the plaintiffs’ costs on a 2B basis plus reasonable disbursements.1 The parties were invited to file memoranda if they could not agree costs.

[3]                 The parties have filed memoranda. The plaintiffs seek 2B costs for each interlocutory application, specifically for filing an opposition, preparing written submissions, and the appearance of principal counsel.

[4]                 The defendants submit that costs should be reserved because costs in summary judgment applications are conventionally reserved; the strike-out applications and affidavits filed have clarified the facts and law and will ultimately result in time and cost savings; and the affidavit evidence will shorten any substantive hearing.

[5]                 The defendants also dispute the plaintiffs’ costs calculation, saying that only one notice of opposition and affidavit was filed. They submit that an allocation of three days for written submissions is excessive (and that two days is more appropriate), and that the plaintiffs should not recover twice for their counsel attending the one half-day hearing.

Decision

[6]                 I do not agree with the defendants that costs should be reserved. Costs on an opposed interlocutory application, unless special reasons exist, must be fixed when

1      Mackinnon-Johnson v Clark [2023] NZHC 3819.

the application is determined.2 This rule does not apply to an application for summary judgment, but there is no carve-out in rule 14.8 for applications for strike-out.

[7]                 The issue in a strike-out application (whether the plaintiffs’ pleading is untenable) differs to the issue for determination in the substantive proceeding. Therefore, the merits of a strike-out application may differ from the merits of the substantive proceeding.

[8]                 Accordingly, I am satisfied that costs in relation to the interlocutory applications should be fixed and payable now.

[9]                 I consider that the plaintiffs’ claim for costs associated with filing oppositions to two interlocutory applications is appropriate. The first and second defendants and the third defendant filed separate interlocutory applications which ultimately relied on different but overlapping grounds. They each filed an affidavit in support of their applications, and separate affidavits in reply. They were, ultimately, two distinct interlocutory applications with some overlap. The fact that the plaintiffs chose to respond through a single notice of opposition and affidavit in support of that opposition does not change that position.

[10]             In relation to the preparation of written submissions, the interlocutory application by the third defendant raised issues that were not present in the interlocutory application by the first and second defendants (dishonest assistance, negligence, and breach of the Fair Trading Act 1986). Discussion of these causes of action against the third defendant involved 20 paragraphs of the judgment.

[11]             Having said that, there was a degree of overlap between the applications, and therefore I consider that an allocation for two complete sets of submissions is excessive. I reduce the allocation from 3 days to 2.5 days.

[12]             I do not consider that the plaintiffs should be entitled to claim for an appearance at the hearing of principal counsel twice. No allowance has been sought or granted for junior counsel.

2      Rule 14.8 of the High Court Rules 2016.

[13]Accordingly, the plaintiffs will be awarded costs on the following basis:

(a)for each interlocutory application, 0.6 days for filing the opposition;

(b)for each interlocutory application, 1.25 days for preparing written submissions;

(c)a single allocation of 0.5 days for appearance at the hearing of principal counsel.

Result

[14]I order the first, second and third defendants to pay the plaintiffs’ 2B costs of

$10,038.00 and disbursements of $95.65.

Associate Judge Gardiner