Mason v Robertson

[2019] NZHC 3391

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-000897

[2019] NZHC 3391

UNDER

Section 124 of the District Courts Act 2016 and r 20.4 of the High Court Rules 2016

BETWEEN

ALEXANDER CHARLES MASON
Appellant

AND

ELIZABETH ANN ROBERTSON

Respondent

Hearing:	On the papers
Judgment:	18 December 2019

JUDGMENT OF DOWNS J

(Costs)

This judgment was delivered by me on Wednesday, 18 December 2019 at 11.30 am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

GJ Thwaite, Auckland.

RS Pidgeon, Auckland.

MASON v ROBERTSON [2019] NZHC 3391 [18 December 2019]

[1]    Alexander Mason engaged  Robert  Hacking,  a  barrister,  between November 2015  and  November  2016.  Mr Mason  paid  some  but  not   all   of   Mr Hacking’s  fees.  Almost $49,000 remains  unpaid.  Judge M E Sharp granted   Mr Hacking summary judgment. Mr Mason appealed unsuccessfully.1 Mr Hacking seeks increased costs in relation to the appeal. Mr Mason resists.

[2]Knowledge of my judgment dismissing the appeal is assumed.

[3]    Mr Hacking contends costs should be increased because the appeal was without merit—and brought to delay payment.2 Mr Hacking also contends Mr Mason wrongly accused him of a sham; so too his instructing solicitor.3

[4]    Mr Mason contends the sham argument was available. He observes the professional relationship between Mr Hacking and Ms Robertson, his instructing solicitor, “did not comport with the conventional instructing solicitor paradigm” and did comport “with the paradigm of a barrister sole accepting instruction directly”. For example, Mr Hacking met with Mr Mason alone; provided legal advice directly to Mr Mason; directly corresponded  with  other  parties;  and  sent  his  invoices  to  Mr Mason, again directly.

[5]    These and other features identified by Mr Mason are evidence of a reverse-brief in which the solicitor has a passive role. They are not evidence of a sham. This allegation was gratuitous and potentially injurious of reputation.

[6]    Mr Mason also contends any increase in costs should be offset by Mr Hacking’s submission that Mr Mason “was an experienced user of litigation services in 2015”. Mr Mason submits there was no evidence to support this submission. He emphasises his later litigation experience (from 2017) was just that.

[7]    Mr Hacking’s submission involved an element of overstatement, not more. It is clear Mr Mason was familiar with lawyers and their services because when he instructed Mr Hacking, Mr Mason asked him to “arrange one of your solicitors to refer

1      Mason v Robertson [2019] NZHC 2989.

2      High Court Rules 2016, r 14.6(3)(b)(ii).

3      Rule 14.6(3)(b)(ii).

me”. In other words, Mr Mason knew Mr Hacking had to reverse-brief a solicitor before Mr Hacking could act. Many people do not understand the distinction between a barrister and solicitor, let alone the intervention rule. It follows Mr Hacking’s submission does not disentitle him to increased costs.

[8]    Scale costs are $10,874.50. I increase by 50 percent. Most of this reflects an utterly meritless appeal and Mr Mason’s associated attempt to delay payment of fees he ought to have paid years ago. Mr Mason did not identify any material error on the part of the Judge. Indeed, his submissions largely ignored the first-instance decision. The sham argument did not greatly contribute to the time or expense of the appeal, hence its subsidiary role in the uplift. But, as observed, this argument was gratuitous (and potentially harmful).

Order

[9]I award costs to Mr Hacking of $16,311.75.

……………………………..

Downs J