Malley & Co v Burgess - [2014] NZHC 2981

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2013-409-001385 [2014] NZHC 2981

BETWEEN
MALLEY & CO

Plaintiff/Counter-Claim Defendant/First
Respondent

AND

GARY OWEN BURGESS Defendant/Counter-Claim Plaintiff/Applicant

AND

DISTRICT COURT AT CHRISTCHURCH Second Respondent

AND

LEGAL COMPLAINTS REVIEW OFFICER

Third Respondent

AND

ERNEST JOHN TAIT Fourth Respondent

AND

NEW ZEALAND LAW SOCIETY Intervener

Hearing: 27 November 2014 (On the papers)

Appearances:

G O Burgess (In Person) M Parker for Respondents

Judgment:

27 November 2014

JUDGMENT OF DUNNINGHAM J

[1] On 2 October 2014, I issued a decision declining Mr Burgess’ application for

judicial review in relation to decisions of the District Court and of the Legal

Complaints Review Officer.

MALLEY & CO v BURGESS AND ORS [2014] NZHC 2981 [27 November 2014]

[2] At the end of my decision I reserved costs but indicated that my provisional view was that the defendants1 were entitled to costs calculated on a 2B basis.

[3] The parties were unable to reach agreement on costs so submissions on the issue of costs were filed by both Mr Burgess and the defendants. I observe that Mr Burgess’ submissions were not filed in accordance with the timeframes directed but, given no obvious prejudice arises to any party, I have accepted and considered his submissions in reaching my decision.

[4] The defendants seek costs calculated in accordance with the High Court Rules costs regime. Those costs, calculated on a 2B basis, but applying a 20 per cent discount for certain steps in the earlier stages of this proceeding,2 total $39,780.10 plus disbursements of $4,633.02. The defendants submit that in the circumstances of this case there is no reason to depart from the standard approach to costs.

[5] Mr Burgess’ submissions on costs can be summarised as follows:

(a) He is currently seeking leave to appeal my decision out of time. He considers that the question of costs should be deferred until the outcome of the application for leave to appeal is known.

(b) Taking into account the provisions of High Court rr 14.1, 14.2 and

14.7(f) and (g), he considers any costs award should be substantially reduced.

(c) His reasons for saying a reduced costs award is appropriate include: (i) the defendants advanced arguments which were not sustained;
(ii)costs should be determined globally, depending on the final outcome of the consolidated proceedings, of which the
application for judicial review was simply one stage;

1 Malley & Co, Ernest John Tait, the District Court at Christchurch and Legal Complaints Review
Officer.
2 As determined by Whata J in his decision on security for costs and related matters: Burgess v
Malley And Co [2014] NZHC 746 at [24].

(iii)he had some success in the judicial review proceedings because of the finding of non-compliance with s 21F of the Property (Relationships) Act 1976 and in regard to Mr Tait’s conduct in certifying the Notice of Claim;

(iv)the respondents have not demonstrated that the costs claimed do not exceed the costs actually incurred as required by r 14.2(f);

(v)the disbursements claimed for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] NZHC 2981
Decision Date: 27 November 2014

CaseChat Overview and Summary

The High Court of New Zealand, Christchurch Registry, heard the case of Malley & Co v Burgess. The dispute revolved around an application for judicial review brought by Gary Owen Burgess against Malley & Co, the District Court at Christchurch, the Legal Complaints Review Officer, and others. Burgess sought to challenge decisions made by the District Court and the Legal Complaints Review Officer, which were related to a larger consolidated proceeding involving his former lawyers. The defendants, represented by Parker Cowan and Clark Boyce, sought costs calculated on a 2B basis, amounting to $39,780.10 plus disbursements of $4,633.02. Burgess argued for a reduced costs award, citing several grounds, including his partial success in the judicial review proceedings and the need to defer the costs decision until the outcome of his application for leave to appeal.

The legal issues before the court included the principles governing the award of costs in the High Court, the appropriateness of a costs award in the context of consolidated and related proceedings, and whether there were grounds to depart from the usual principles applying to the determination of costs. The court considered whether the defendants were successful in the proceedings, whether there were special reasons to defer the costs decision, and whether any of Burgess' submissions warranted a departure from the usual principles.

The court held that the defendants were successful in the proceedings and that there were no special reasons to defer the costs decision. The court rejected Burgess' arguments that costs should be globally determined based on the final outcome of the consolidated proceedings, that the costs claimed exceeded the defendants' actual costs, and that the defendants' lawyers were acting unlawfully or lacked independence. The court also held that the presumption in the High Court Rules costs regime was that costs should be determined expeditiously and that deferring the costs decision would not serve the interests of justice.

The court ordered that the plaintiff pay the defendants' costs, calculated on a 2B basis but with a 20 per cent discount for certain steps in the earlier stages of the proceeding, amounting to $39,780.10 plus disbursements of $4,064.19. The court rejected Burgess' submissions that the costs award should be substantially reduced and held that there were no good reasons to depart from the usual principles applying to the determination of costs.

Orders