McGuire v Manawatu Standards Committee

[2015] NZHC 2708

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CIV-2015-454-13 [2015] NZHC 2708

UNDER

the Judicature Amendment Act 1972

AND

Part 30 of the High Court Rules

BETWEEN

JEREMY JAMES MCGUIRE Plaintiff

AND

MANAWATU STANDARDS COMMITTEE

Defendant

Hearing:	On the papers
Counsel:	Plaintiff in person P N Collins and M F Fogarty for Defendant
Judgment:	4 November 2015

RESERVED JUDGMENT OF COLLINS J (Costs)

I direct that the delivery time of this judgment is

12 pm on the 4th day of November 2015

MCGUIRE v MANAWATU STANDARDS COMMITTEE [2015] NZHC 2708 [4 November 2015]

Introduction

[1]      This judgment sets out the costs Mr McGuire is entitled to receive following a judgment of Kós J delivered on 1 September 2015.1

Background

[2]      Mr McGuire is a lawyer practising in Palmerston North.  He was the subject of a complaint about fees that was heard by the Manawatu Standards Committee (the Committee).   The Committee upheld the complaint, reduced the fees charged by Mr McGuire and censured him.

[3]      Mr McGuire issued judicial review proceedings on the grounds that one of the Committee members was biased and that the Committee had failed to follow proper procedure.   Mr McGuire also sought damages.   Ultimately the Committee accepted it had erred and acknowledged its decision had to be set aside.

[4]      On 1 September Kós J quashed the Committee’s decision and directed the complaint be reconsidered by a committee made up of different members.   As to costs, Kós J said:2

Mr McGuire is entitled to costs on a category 2 band B basis.  If these cannot be  agreed,  brief  memoranda  may  be  submitted.    I  note,  however,  that Mr McGuire’s expectation as to costs must reflect the fact that from at least the time of filing of the further amended statement of defence on 17 June

2015, the defendant was offering no contest to the judicial review claim

(other than as to liability for damages).

[5]      Mr McGuire has sought costs in the sum of $29,659 plus disbursements.  The

Committee says Mr McGuire is entitled to no more than $12,537 plus disbursements. [6]      The dispute between the parties can be distilled to three key matters:

(a)      the appropriate daily recovery rate;

1      McGuire v Manawatu Standards Committee [2015] NZHC 2100.

2 At [42].

(b)      whether Mr McGuire is entitled to costs for events after 17 June 2015;

and

(c)       whether costs can be claimed for some events.

The appropriate daily recovery rate

[7]      Mr McGuire’s claim for costs is based on the daily recovery rate prescribed in sch 2 of the High Court Rules.  The daily recovery rate prescribed in those rules increased with effect from 1 July 2015.   The increase for category 2 matters was from $1,990 to $2,230 per day.   Mr McGuire’s calculations are based on the new rate.

[8]      In my assessment, Mr McGuire is entitled to costs calculated on the daily rate in force at the time the events in question occurred.3     Thus, for events prior to

1 July 2015 the daily recovery rate is $1,990.   For events after 1 July the daily recovery rate is $2,230.

Events after 17 June 2015

[9]      The Committee made a Calderbank offer to Mr McGuire on 12 June 2015. From 17 June the Committee was willing to consent to orders quashing the Committee decision.  Understandably, the Committee resisted any claim for damages in a judicial review proceeding.

[10]     The Committee acted appropriately and responsibly from 17 June when it appreciated there was no defence to the natural justice aspects of Mr McGuire’s claim.  The Committee also acted responsibly in resisting Mr McGuire’s claim for damages.

[11]     Rules 14.7(f)(ii) and (v) are engaged in the circumstances of this case.  Those rules allow a Court to refuse an order for costs or reduce costs if the party claiming

costs has contributed unnecessarily to the time and expense of the proceedings by:

3      Body Corporate 396711 v Sentinel Management Ltd [2012] NZHC 2556 at [12]; citing FM Custodians Ltd v Pati [2012] NZHC 1902.

…

(ii)      taking or pursuing an unnecessary step or an argument that lacks merit; or

…

(v)      failing,  without  reasonable  justification,  to  accept  an  offer  of

settlement …

[12]     In my assessment, it is very clear that as at 17 June 2015 this proceeding was effectively at an end.   Mr McGuire however pursued a number of further steps including:

(a)       preparing a list of issues, authorities and common bundle; and

(b)      preparing for the hearing.

[13]     This is a case in which the Court should exercise its discretion and rule against Mr McGuire being entitled to costs for events after 17 June 2015.

Claims for events

[14]     Amongst the matters Mr McGuire has claimed are $796 for preparing for a first case management conference and a further $796 for filing a memorandum for that case management conference.   The Committee says there was no case management conference.

[15]     There appears to be no record of the case management conference on the file. In these circumstances, Mr McGuire cannot claim for these matters.

Conclusion

[16]     Mr McGuire is entitled to costs in the sum of $12,537 plus disbursements which I set at $1,230.

[17]     I make no order for costs in relation to this latest step in the proceeding.

Solicitors:           New Zealand Law Society, Wellington, for defendant

Copy to:            The Plaintiff

D B Collins J