Mailley v Shaw

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2015-404-1185

[2021] NZHC 3447

BETWEEN
MARTIN MAILLEY

First Plaintiff

SABRINA NUTARELLI
Second Plaintiff

AND

ANTONY SHAW

First Defendant

TONY ELLIS (Discontinued) Second Defendant

THE NEW ZEALAND LAW SOCIETY

Third Defendant

On papers

Judgment:

14 December 2021

JUDGMENT OF TOOGOOD J

[Costs on applications for recall]

This judgment was delivered by me on 14 December 2021 at 3pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors:
Ord Legal, Wellington for first defendant
Lee Salmon Long, Auckland for third defendant

Copy to:
The plaintiffs

MAILLEY v SHAW [2021] NZHC 3447 [14 December 2021]

[1] On 28 October 2021, I issued a judgment (the recall judgment)1 in which I dismissed applications by Mr Mailley for the recall of a judgment of Associate Judge Andrew as to costs2 and a minute of the Associate Judge dated 23 April 2021 rejecting a recusal application.3

[2] I held that the defendants are entitled to costs calculated on a category 2B basis and set a timetable for the exchange of costs memoranda.4

[3] The defendants’ costs submissions were filed on 19 November 2021 in accordance with the timetable. Mr Mailley was given until 10 December 2021 to file and serve a memorandum in reply. He has not done so.

[4] Mr Shaw seeks increased costs with an uplift of 25 per cent from scale “on account of the Plaintiffs’ filings being without merit and repetitive” and disbursements. I am not satisfied that an award of increased costs is called for but the scale costs claimed are appropriate and Mr Shaw is entitled to disbursements as claimed.

[5] The New Zealand Law Society claims costs only according to scale and I am satisfied that they are correctly calculated also.

[6]Accordingly, I order:

(a)Mr Mailley shall pay Mr Shaw costs in the sum of $3,346 and disbursements of $95.65, both amounts being exclusive of GST;

(b)Mr Mailley shall pay the New Zealand Law Society costs of $1,912 exclusive of GST.

Toogood J

1      Mailley v Shaw [2021] NZHC 2876.
2      Mailley v Shaw [2021] NZHC 841.
3      Mailley v Shaw HC Auckland CIV-2015-404-1185, 23 April 2021 (Minute of Associate Judge Andrew).
4      Mailley v Shaw, above n 1 at [18].

CaseChat Overview and Summary

In the High Court of New Zealand, Martin Mailley and Sabrina Nutarelli sought to appeal a series of judgments made in their legal battle against Antony Shaw, Tony Ellis (who has since been discontinued from the proceedings), and the New Zealand Law Society. The case, originally filed in 2015, has undergone numerous stages and appeals, including a recent application for the recall of a previous judgment on costs. The core dispute revolves around the legal fees and associated costs incurred during the protracted litigation, which the plaintiffs contested.

The central legal issue before the court was whether the plaintiffs' applications for the recall of certain judgments and the recusal of a judge were meritorious. Specifically, the court needed to determine if the plaintiffs' applications were without merit, which would impact the assessment of costs. Additionally, the court had to decide on the appropriate scale for the calculation of costs for the defendants and whether any increased costs or disbursements were warranted due to the plaintiffs' conduct in the proceedings.

In delivering the judgment, the court dismissed the plaintiffs' applications for the recall of the previous judgments and upheld the decisions of the Associate Judge. The court found that the plaintiffs' applications lacked merit and were repetitive, thereby justifying the imposition of costs on a category 2B basis. The court concluded that while an uplift in costs was not warranted, the defendants were entitled to the costs calculated according to scale. Moreover, the court found that the New Zealand Law Society was also entitled to costs as claimed.

The court ordered that Martin Mailley pay Antony Shaw $3,346 in costs and $95.65 in disbursements, and also pay the New Zealand Law Society $1,912 in costs, all amounts exclusive of GST. This decision effectively concludes the cost-related aspects of the prolonged litigation between the parties.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established