Michaels and Druker suing v New Kadampa Tradition International Kadampa Buddhist Union HC Wellington CIV-2011-485-386

[2011] NZHC 1119

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2011-485-386

BETWEEN  ANDREW GORDON MICHAELS AND AVRIL SUSAN DRUKER SUING AS TRUSTEES OF THE DRUKER- MICHAELS FAMILY TRUST

Plaintiffs

ANDNEW KADAMPA TRADITION - INTERNATIONAL KADAMPA BUDDHIST UNION

Defendant

Judgment:      14 September 2011 at 3:00 PM

JUDGMENT AS TO COSTS OF ASSOCIATE JUDGE D.I. GENDALL

This judgment was delivered by Associate Judge Gendall on 14 September 2011 at

4.00 pm under r 11.5 of the High Court Rules.

Solicitors:           Izard Weston, Solicitors, PO Box 5348, Wellington 6145

AG MICHAELS AND AS DRUKER SUING AS TRUSTEES OF THE DRUKER-MICHAELS FAMILY TRUST V NEW KADAMPA TRADITION - INTERNATIONAL KADAMPA BUDDHIST UNION HC WN CIV-2011-485-386 14 September 2011

Introduction

[1]      In a judgment as to quantum I gave in this proceeding on 15 August 2011, I noted at para [29](c) that the plaintiffs were entitled to interest at the rate prescribed by s 87 of the Judicature Act 1908 on a judgment amount of $1,080,000.00, which represented the diminution in value of the property in question from the date of cancellation of the sale agreement under consideration being 21 December 2010.

[2]      Counsel for the plaintiffs has now filed a memorandum dated 23 August 2011 which, amongst other things, addresses this interest question.

Interest Calculations

[3]      In this memorandum the plaintiff now seeks interest for two distinct periods at the Judicature Act 1908 rates applying at the time.  The first is from 21 December

2010 up to 20 June 2011 at the rate of 8.4% per annum on the $1,080,000.00.  The plaintiff contends that this interest amount totals $47,852.31.  The second period sees interest sought under the new Judicature Act 1908 rate of 5% per annum from 1 July

2011 up to 23 August 2011 on this $1,080,000.00.  Interest for this period is said to total $8,010.99.

[4]      At the outset, I confirm that the interest rates charged of 8.4% per annum from 21 December 2010 up to 20 June 2011 and 5% per annum from 1 July 2011 up to 23 August 2011 are appropriate.

[5]      By my calculations, however, the first amount for interest from 21 December

2010 to 20 June 2011 being 182 days should total $45,533.10 and not the $47,852.31 claimed.   In addition by my calculations, interest at the reduced rate of 5% per annum for the second period from 1 July 2011 to 23 August 2011 being 54 days should total $8,041.56 and not the $8,010.99 claimed in counsel’s memorandum.

[6]      The  total  amount  for  interest  by  my  calculations  on  the  $1,080,000.00 diminution in value of the property up to 23 August 2011 therefore, should be the amounts noted above of $45,533.10 and $8,041.56. These total in all $53,574.66.

[7]      An order is now made, therefore, that the defendant is to pay interest in terms of para [29](c) of my 15 August 2011 judgment up to 23 August 2011 totalling

$53,574.66.

Costs and Disbursements Claim

[8]      In addition, in this 23 August 2011 memorandum, counsel for the plaintiffs provides a calculation of category 2B costs and disbursements as ordered to be paid to the plaintiffs at para [31] of my judgment of 15 August 2011.

[9]      These category 2B costs, which are set out at Schedule 2 attached to that memorandum, total $20,210.00 and the disbursements claim outlined at Schedule 3 to that memorandum totals $17,725.39.

[10]     As to the $20,210.00 costs claim, this is itemised in Schedule 2 and I am satisfied that the amounts claimed are appropriate here.  An order is now made that the defendant is to pay to the plaintiffs category 2B costs on this matter totalling

$20,210.00.

[11]     As  to  the  disbursements  claim  of  $17,725.39  attached  as  Schedule  3  to

counsel’s memorandum, the only issue of possible contention here is a claim for

$16,100.00 representing the fees paid by the plaintiff to their expert witness, Mr Paul van Velthooven.

[12]     The evidence of Mr van Velthooven was referred to at para [16] of my 15

August 2011 judgment.  He is the plaintiff ’s expert registered valuer.  He provided an affidavit valuing the property at Highden and in addition Mr van Velthooven gave evidence on valuation aspects at the hearing before me.

[13]     A copy of the plaintiff’s contract with Mr van Velthooven dated 5 July 2011 outlining   this   $16,100.00   charge   is   attached   to   Schedule   3   of   counsel’s memorandum.

[14]     Mr van Velthooven’s evidence in this proceeding was critical to establishing the loss by way of diminution in value of the property claimed by the plaintiff here.

In my view his charges and expenses as a witness were reasonably necessary for the conduct by the plaintiffs of this proceeding pursuant to r 14.12(2)(c) and, as  a professional valuer, were reasonable in amount pursuant to r 14.12(2)(d).  Under all the circumstances I am satisfied that this disbursement claim of $16,100.00 for Mr van Velthooven’s agreed fee as an expert witness is appropriate here.

[15]     An  order  is  now  made  approving  the  total  disbursements  claim  by  the plaintiffs against the defendant here of $17,725.39.

‘Associate Judge D.I. Gendall’