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, there are no  special features that need to  be recorded.   What is  of some significance in this debate is that the purpose of Part 14 and in particular Schedules 2 and 3, is to provide a basis of predictability of costs in civil proceedings.   It is evident that there is no specific entry in Schedule 3 covering memoranda called for by the court to deal with costs.  Having said that, I simply record the fact that costs are in the discretion pf the court as provided by r 14.1.  The position is summarised in McGechan on Procedure at 14.1(02) as follows:

HR14.1.02      The discretion

(1)     Principles

The principles governing the exercise of the general discretion given by r

14.1 are now well established.

(a)       At least since the introduction of the detailed costs regimes in 2000, the discretion has not been unfettered. It is qualified by the specific costs rules rr 14.2- 14.10, and is exercisable only in situations not contemplated by those specific rules, or which are not fairly recognised by them.

(b)       The costs regime is of a regulatory character and it is important that its integrity be maintained.

(c)       There is accordingly a strong implication that the Court is to apply the regime in the absence of some reason to the contrary.

(d)       Any departure must be a considered and particularised exercise of the discretion.

(e)       Although the Court does not need to give reasons for a cost order that applies the regime, reasons (albeit brief) must be given for any departure.

The authors refer to a number of authorities to support that general position.

(2)     Authorities

Those principles emerge from Manukau Golf Club Inc v Shoye Venture Ltd [2012] NZSC 109, [2013] 1 NZLR 305 at [7] and [16]; Glaister v Amalgamated Dairies Ltd [2004] 2 NZLR 606, (2004) 16 PRNZ 1047 (CA) at [21]-[24] and [28] and Mansfield Drycleaners Ltd v Quinny’s Drycleaning (Dentice Drycleaning Upper Hutt) Ltd (2002) 16 PRNZ 662 (CA) at [27].

[6]      I do not consider in this case that an additional allowance for cost memoranda should be separately allowed for.

Conclusion and orders

[7]      I conclude that a further cost order should be made in the defendant’s favour

and the plaintiffs should pay an additional sum of $1,725.

[8]      I order accordingly.

JA Faire J