Maehl v Lenihan

[2019] NZHC 1885

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-2881

[2019] NZHC 1885

UNDER

Part 32 of the High Court Rules

BETWEEN

ANDREW ALEXANDER MAEHL and WINNIFRED CHARLESWORTH

Applicants/Appellants

AND

JOHN ROBERT LENIHAN

Respondent

On the papers
Appearances:	Z A Matheson for Applicants S Stienstra for Respondent
Judgment:	6 August 2019

COSTS JUDGMENT OF WALKER J

This judgment was delivered by me on 6 August 2019 at 11.00 am Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

[1]        I issued a Judgment on 26 June 2019, granting leave to appeal out of time and allowing the substantive appeal of Mr Maehl and Ms Charlesworth.1

[2]        I indicated in that Judgment that I was minded to award 2B costs to the appellants on the substantive appeal. I considered that the leave application was subsumed by the substantive appeal and ought not to attract costs. I expressed my preliminary indications as subject to hearing from the parties.

[3]        I have received the memorandum of the appellant seeking 2B costs in the sum of $13,826.00 plus disbursements of $1,667.50.

[4]        I have received a memorandum on behalf of the second respondent in reply, submitting that the costs order should be reduced to $3,000.00 on four grounds:

(a)The technical nature of the appellants' success on appeal;

(b)The small sum at stake in the appeal;

(c)The extent to which the costs of the appeal were caused by the appellants' own conduct; and

(d)The duration of the hearing.

Discussion

[5]        Firstly, a memorandum dated 15 February 2019 on behalf of Mr Lenihan expressly acknowledged that the matters at issue were not straightforward despite the small sums involved.

[6]        Ms Stienstra's submission that costs should be reduced because only a small sum at stake is at odds with Mr Lenihan's first appeal, which disputed the District Court's decision to award the same low sum. He sought costs in that appeal of

$13,826.00. The full sum was not awarded by Wylie J; rather it was reduced to

$9,366.00 to reflect the fact that Mr Lenihan changed course at the hearing.

1      Maehl v Lenihan [2019] NZHC 1457.

[7]        I do not accept that the costs of the appeal were necessarily caused by the appellants' own conduct. The failure to bring the appeal within the prescribed time, necessitating an application for leave to extend the time for appeal is explained in the substantive judgment. No submission is made which dissuades me from my preliminary view that the leave to appeal application was subsumed by the substantive appeal issue. The contest on the leave aspect, while a threshold issue, was relatively short. Ms Stienstra's characterisation of this aspect as the "only complex matter" does not withstand scrutiny. In my judgment, the appeal before Wylie J was not the "substantive appeal". While there were overlapping issues, they were not identical.

[8]        Ms Stienstra submits that the appeal hearing was one-hour in duration. This is incorrect. The appeal took a half-day of hearing time and there were significant issues of principle.

[9]        It is also not relevant that my judgment reinstated the costs decision imposed by Judge Dawson in the District Court. It is not appropriate to adopt a global approach to costs with a consequent reduction or discount in costs of the appeal. The award related to the District Court proceedings. My costs order relates to the appeal before me.

[10]       Finally, the respondent queries the proposed quantum for preparing for and appearing at the first Case Management Conference (CMC). Ms Stienstra contends that there was overlap between this work and the work done for the parallel proceeding between the parties. Having reviewed same, I note the parties filed memoranda in connection with a CMC on 19 February 2019. Although subsequent memoranda sought to deal with the parallel proceedings together, the 19 February CMC appears from the file to be a separate step and the Minute of Jagose J dated 19 February 2019 relates only to this proceeding (CIV-2018-404-2881).

[11]      Finally, I accept that the appellants sought to resolve the questions of costs in this and the related proceedings before the appeal was heard. The pragmatic proposal to let costs lie where they fall was rejected by Mr Lenihan.

Result

[12]      Accordingly, I award costs to the appellants of $15,493.50 comprising costs on a 2B basis as per the appellant's schedule and disbursements of $1,667.50.

...............................................

Walker J