McKinley v Whitburn

[2023] NZHC 2700

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2020-412-082

[2023] NZHC 2700

BETWEEN

KATHRYN RAE McKINLAY and ALAN WAYNE REID

Plaintiffs

AND

ROSS NEIL WHITBURN and VALERIE ELIZABETH WHITBURN

Defendants

Hearing:

(On the papers)

Appearances:

J W Cowan for Plaintiffs (by VMR)

T J Shiels KC for Defendants (by VMR)

Judgment:

27 September 2023

JUDGMENT OF ASSOCIATE JUDGE LESTER

(costs)

McKINLAY v WHITBURN [2023] NZHC 2700 [27 September 2023]

[1]                 This proceeding was subject to a judgment released on 10 March 2023,1 where judgment for liability was entered for the defendants on their counterclaim against the plaintiffs (the McKinlays), meaning the defendants (the Whitburns), had some success in their application. I called for costs submissions.

[2]                 Submissions as to costs were filed in March 2023 but with the McKinlays having lodged an appeal against the 10 March 2023 judgment, I deferred dealing with costs until the appeal was heard because if the appeal was successful, that would have an impact on the issue of costs.

[3]                 Counsel filed a joint memorandum dated 25 September 2023 advising that with the Dunedin City Council having issued a Code Compliance Certificate, the property transaction in issue in this proceeding has settled and title has been transferred to the Whitburns.

[4]                 The parties have agreed to withdraw their appeals to the Court of Appeal and notices to that effect have, or will very shortly, be lodged with the Court of Appeal.

[5]                 With that step having occurred, the parties seek that costs be determined in accordance with the earlier memoranda.

[6]                 Having determined in the March 2023 judgment that it was the McKinlays as vendors who  were in breach  of their obligations to the Whitburns  as purchasers,     I consider the Whitburns were the successful party in this litigation. Counsel for the Whitburns, Mr Shiels KC, sought costs on a 2B (and in one case, 2C) basis in respect of the proceeding.

[7]                 I do not accept that the McKinlays are entitled to costs in respect of the summary judgment application brought by the Whitburns. As noted, the Whitburns achieved a fair degree of success in that proceeding albeit, not all of the orders they sought were granted. The High Court Rules 2016 recognise that some success on more limited terms is still success.2

1      McKinlay v Whitburn [2023] NZHC 468.

2      Robert Osborne (ed) McGechan on Procedure (online ed, Thomson Reuters) at [14.2.01(1)].

[8]                 Both parties sought the completion of the purchase. The summary judgment determined that fault for the purchase not being completed, lay with the McKinlays. Costs should follow the event. In my view, it is appropriate that the McKinlays pay costs on a category 2 basis in respect of the proceeding.

[9]                 However, in respect of the schedule annexed to Mr Shiels memorandum, I am satisfied that a number of adjustments are required.

[10]              In respect of Item 22, I do not allow Band C for the application, accordingly the time allocation is 0.6.

[11]              In respect of the claim for memoranda, to reflect that they were joint memoranda, costs are allowed on a 2A basis which halves the claim of 5.2 days meaning 2.6 days is available.

[12]I reduce the allowance for written submissions to one set of submissions being

1.5 days.

[13]I reduce the 23 June 2021 appearance to 0.25 days.

[14]By my calculation that is an allowance of 7.45 days at the daily rate of

$2,390.00 giving a total of $17,805.50.

[15]              The disbursements have been queried by Mr Cowan, counsel for the McKinlays.   Mr Shiels is to clarify the filing fees paid on 22 February 2023 as     Mr Cowan has queried what they relate to. Assuming they were properly payable in respect of the proceeding, then there is no reason why they should not be paid. If counsel cannot agree on that issue, it may be referred back to me.

[16]              I disallow the claim for photocopying and binding costs.  There is merit in  Mr Cowan’s point that the material duplicated was not relevant to the hearings.

Associate Judge Lester

Solicitors:

Anderson Lloyd, Dunedin (for Plaintiffs) O’Neill Devereux, Dunedin (for Defendants)

Copy to counsel:

T J Shiels QC, Barrister, Dunedin (for Defendants)