Marr v Parkin - [2015] NZHC 2696

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-5102 [2015] NZHC 2696

UNDER the Declaratory Judgments Act 1908

BETWEEN

BERNADETTE MAKUINI MARR First Plaintiff

KEITH CHARLES BLUETT MARR and

CHARLOTTE RUBY MARR Second Plaintiffs

AND

BARRY IAN PARKIN Defendant

Hearing: On the papers

Counsel:

EJ Werry for plaintiffs
KT Glover for defendant

Judgment:

2 November 2015

JUDGMENT OF FAIRE J

This judgment was delivered by me on 2 November 2015 @ 12:30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: Atmore Lawyers, Auckland (G Atmore) Graham Jones Law, Auckland (G Jones)

Marr v Parkin [2015] NZHC 2696 [2 November 2015]

[1] This judgment deals with the matters reserved for further consideration in my costs judgment of 19 June 2015.

[2] The plaintiffs accepts that part of Mr Phillips’ fee, namely $1,500 plus GST, ie $1,725 should be paid. This is because it represents legal costs associated with Mrs Guttenbeil complying with her non-party obligations. The concession is properly made. I shall make the appropriate order at the conclusion of this judgment.

[3] The next matter that requires consideration is the balance of Mr Phillips’ fee. That fee was incurred for giving advice to Mrs Guttenbeil, a witness called by the defendant. In my view, it is not a cost which the plaintiffs should bear in this case. It is advice given to a non-party.

[4] The next aspect of Mr Phillips’ bill relates to his preparation of his own brief of evidence. In this particular case, it seems to me to fall directly within those matters that are excluded as disbursements as contained in r 14.12(1). If I were to allow his fee for preparation of his brief of evidence, there would, in essence, be a potential double recovery. What he has done falls within Item 30 of the Third Schedule of the High Court Rules. The examples referred to in McGechan on Procedure at r 14.12(4)(e) involve special situations, namely, the fee of an independent barrister who attended the execution of an Anton Pillar order and the fee of a solicitor who gave expert evidence about subdivisional requirements. The situation dealt with by Dobson J in Houghton v Saunders is also rather a special
category.1 There are no special features however in this case that suggest to me

anything other than there was a preparation of a brief of evidence by a witness who could have been subpoenaed. In those circumstances, I conclude this is not an appropriate case to include the balance of Mr Phillips’ fee as a cost to be paid by the plaintiffs.

[5] The final matters that requires consideration by me in this judgment is whether I should allow any further cost arising out of the preparation of costs
memoranda. Counsel’s memoranda disclose that there is as yet no uniform practice

1 Houghton v Saunders [2015] NZHC 548.

on this and that there are in fact two lines of authority. In my view, in this particular case,…

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.

Continue reading Marr v Parkin

Details

AGLC: Marr v Parkin [2015] NZHC 2696
Case: [2015] NZHC 2696
Decision Date: 2 November 2015

CaseChat Overview and Summary

The High Court of New Zealand, Auckland Registry, addressed a dispute in the case of Marr v Parkin, which involved the plaintiffs Bernadette Makuini Marr, Keith Charles Bluett Marr, and Charlotte Ruby Marr, and the defendant Barry Ian Parkin. The plaintiffs sought a declaration regarding their legal rights and the defendant was contesting certain costs incurred during the proceedings. The central issue was the determination of the costs that the plaintiffs should bear, particularly those related to a non-party witness, Mrs. Guttenbeil, who was called by the defendant. The court needed to decide whether the plaintiffs should be liable for the full legal costs of Mrs. Guttenbeil and the defendant's counsel's fees for preparing a brief of evidence and cost memoranda.

The court examined the legal costs associated with Mrs. Guttenbeil, concluding that the plaintiffs should pay $1,725 for her non-party obligations. However, the balance of the defendant's counsel's fees, which were incurred for giving advice to Mrs. Guttenbeil, was deemed not to be a cost that the plaintiffs should bear. Additionally, the court found that the preparation of the brief of evidence by the defendant's counsel fell under matters excluded as disbursements, and thus, should not be included as a cost to be paid by the plaintiffs. The court also noted that there was no uniform practice regarding the allowance of costs for the preparation of cost memoranda, and in the absence of special circumstances, it decided not to allow any additional costs for this purpose.

The court's reasoning led to the conclusion that the plaintiffs should pay an additional sum of $1,725. Therefore, the court made an order to this effect, directing the plaintiffs to pay the specified amount to the defendant.

Orders