Mathews v CD Realty (PN) Limited HC Palmerston North CIV 2010-454-276

[2010] NZHC 2008

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CIV 2010-454-276

BETWEEN  BRENT ADAIR MATHEWS Appellant

ANDCD REALTY (PN) LIMITED Respondent

Hearing:         9 November 2010 (On papers) (Heard at Wellington)

Counsel:         G A Paine for Appellant

A Isac for Respondent

Judgment:      9 November 2010

JUDGMENT OF MILLER J (On Costs)

[1]      On 15 September 2010 I dismissed the appeal and held the respondent was entitled to costs on a 2B basis.  The parties now dispute costs.

[2]      Mr Paine initially filed a memorandum on 6 October on costs, in which he accepted the respondent was entitled to costs in principle, albeit for a lesser quantum than sought.   However, he then filed further memoranda on 19 and 22 October requesting a hearing and indicating that he would be seeking costs.  After issuing a minute on 27 October and considering the appellant’s memorandum of 22 October, I decided that no justification had been given for a hearing and that I would deliver this judgment on the papers.

[3]      The respondent has applied for costs on a 2B basis, while noting it believes it has a claim for indemnity costs due to the contractual arrangement between the parties.   The respondent has sought costs of $8,460 which include costs for the

following items; commencing a defence, filing a memorandum for case management

BRENT ADAIR MATHEWS V CD REALTY (PN) LIMITED HC PMN CIV 2010-454-276  9 November 2010

conference or mentions here, and preparation for case management conference or pre-trial conference.  The respondent has also sought costs for steps not specifically mentioned in the proceeding, namely preparing the bundle on appeal.  Many of these costs are manifestly inappropriate.  I remind Mr Isac that the costs rules are intended to be capable of straightforward agreement between counsel.

[4]      The respondent is not entitled to costs for commencing a defence.  Schedule

3 of the High Court Rules describes the components of commencing a defence as “receiving instructions, researching facts and law, and preparing, filing, and serving statement of defence or notice of opposition”.  These steps are not taken by a party responding to an appeal; the facts and law have already been researched before the trial.  Moreover, item 12 of schedule 3 provides for costs for commencing an appeal or review which is described as “including assessing original decision, noting appealable or reviewable points, and filing and serving notice of appeal and points of appeal  or  notice  of  application”.    There  is  no  equivalent  time  allocation  for responding to an appeal or review, which indicates costs are not appropriate.

[5]      The respondent is not entitled to receive costs for both filing a memorandum for case management conference or mentions hearing, item 4.10, and preparation for case management conference or pre-trial conference, item 13.  To recover for both items  would  be  double  recovery.    Of  the  two  sets  of  costs,  item  13  is  more appropriate than item 4.10.  Item 4 is entitled “Interlocutory proceedings and related steps” and it contains time allocations for interlocutory proceedings, discovery, and notices to admit facts.  These are issues that arise pre-trial, rather than on appeal.  By contrast, item 13 is a general time allocation.  Given pre-hearing issues are by and large less significant on appeal than pre-trial, it is also appropriate to award costs for item 13, which allocates 0.2 days for preparation, rather than for item 4.10, which allocates 0.4 days.

[6]      The respondent has also sought costs under item 11, which allows for a time allocation at my discretion for steps not specifically mentioned.   The Minute of Associate Judge Abbott recorded that the appellant was to file and serve the common bundle by 30 July 2010.  The respondent contacted the appellant on 23 July and 13

August to determine when the bundle would be filed and did not receive a response. The  respondent  filed  a  common  bundle  on  17  August  2010  and  the  appellant

eventually filed a bundle on 24 August 2010.  The respondent incurred a cost due to the appellant’s inaction that they were not meant to incur.  I will make an allowance of $200 for this extra expense.

[7]      The respondent is entitled to costs of $3,208, which I have set out in a table below:

Item	Description	Time allocated	Costs (At daily rate of $1,880)
4.18	Sealing order or judgment	0.2	$   376.00
13	Preparation for case management conference or pretrial conference	0.2	$   376.00
14	Appearance at case management conference or pretrial conference	0.2	$   376.00
15	Preparation for appeal	0.5	$   940.00
16	Appearance at hearing	0.5	$   940.00
11	Other steps in the proceeding – preparing a bundle	–	$   200.00
$3,208.00

[8]       The respondent will have judgment accordingly.

Miller J

Solicitors:

B Andrew, Palmerston North for Appellant

Fitzherbert Rowe, Palmerston North for Respondent