Mikitasov v Nicholas

[2013] NZHC 621

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV 2012-488-456 [2013] NZHC 621

BETWEEN  IGOR MIKITASOV Appellant

ANDJ L NICHOLAS First Respondent

ANDWAIORA TRADING LTD Second Respondent

AND  S G SEED

Third Respondent

Hearing:         (on the papers)

Counsel:         A A H Low for Appellant

R Mark for Respondents

Judgment:      27 March 2013

JUDGMENT OF HEATH J

This judgment was delivered by me on 27 March 2013 at 3.00pm pursuant to Rule

11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:
Short & Partners, PO Box 137-241, Parnell, Auckland

Richard Mark, PO Box 172, Kerikeri

MIKITASOV V NICHOLAS HC WHA CIV 2012-488-456 [27 March 2013]

The application

[1]      This is an application for costs made following dismissal of Mr Mikitasov’s

appeal against a decision of a District Court.

Background

[2]      Mr Mikitasov has sued Mr Nicholas, Waiora Trading Ltd and Mr Seed in the District Court at Kaikohe.  He alleges that various remedial work carried out on a property that he owns was negligent.   The work was undertaken by or under the supervision of one or more of the three defendants.

[3]      On 5 April 2012, Judge de Ridder heard Mr Mikitasov’s application  for discovery.  For reasons given in a judgment delivered on 13 June 2012, His Honour ordered that part of the documents sought by Mr Mikitasov should be disclosed.[1]

Costs lay where they fell.  Judge de Ridder said that it was “clear that there [had] been an ongoing issue with discovery for some time, for which both parties must accept some responsibility”.[2]

[1] Mikitasov v Nicholas DC Kaikohe CIV 2010-027-99, 13 June 2012.

[2] Ibid, at para [25].

[4]      Mr Mikitasov appealed against Judge de Rider’s refusal to order that other documents be disclosed.  The appeal was filed on or about 5 July 2012.  On 8 March

2013, a telephone conference took place, at which I was told that Mr Mikitasov no longer wished to pursue the appeal.  A hearing scheduled for 26 March 2013 was vacated and a timetable established for the exchange of memoranda on costs.  The parties have agreed that I should deal with costs on the papers.

Competing contentions

[5]      For Mr Nicholas, Waiora Trading Ltd and Mr Seed, Mr Mark submits that costs should be awarded in favour of those parties on a 2B basis, together with

reasonable disbursements.  He points out that it was necessary for his clients to incur

costs to oppose the appeal, attend case management conferences, prepare written submissions, assist in compiling an agreed bundle of documents for use on the appeal, to attend an aborted hearing in Whangarei on 17 December 2012 and to participate in the telephone conference of 8 March 2013.

[6]      Mr  Mark  also  points  out  that  the  existence  of  the  appeal  has  delayed resolution of the substantive District Court proceeding.   It had been set down for hearing in the week commencing 3 December 2012 but was adjourned because, among other reasons, the discovery appeal remained extant.   The proceeding will now be heard in August 2013.

[7]      Ms Low, for Mr Mikitasov, submits that although her client indicated on 8

March 2013 that he would not pursue the appeal he continued to have faith that it might have succeeded.

[8]      Mr  Mikitasov  contends  that  none  of  the  delays  to  which  Mr  Mark  has referred were his fault.  Ms Low submits that time dealing with case management conferences would not have increased significantly costs incurred by the parties for whom Mr Mark acts.

Analysis

[9]      Mr  Mikitasov  makes  a  cross  application  for  costs.    Whatever  merit  (or otherwise) the arguments may have in respect of delay of the District Court proceeding (on which I express no opinion), those issues are not relevant for the purpose of fixing costs on appeal.  I decline to make any order for costs in favour of Mr Mikitasov.

[10]     The primary rule is that costs follow the event.   The appeal having been dismissed, Mr Mikitasov carries responsibility for the opposing parties’ costs, while it was being progressed.

[11]     Mr Mark has provided a calculation based on the application of 2B costs. They total around $8,800.  However, Mr Mark accepts that the time permitted for

preparation of written submissions far exceeds the actual time sought.   I consider that it is appropriate that the quantum of costs be fixed on a global basis to reflect a fair award, as between Mr Mikitasov and the parties for whom Mr Mark acts.

[12]     Taking account of the factors to which Mr Mark refers, I consider that one set of costs should be awarded in favour of Mr Nicholas, Waiora Trading Ltd and Mr Seed in a sum of $3000, together with reasonable disbursements to be fixed by the Registrar.   I consider that sum is a fair contribution towards costs incurred in defending the appeal.

Result

[13]     For those reasons, I make a single award of costs against Mr Mikitasov and in favour of Mr Nicholas, Waiora Trading Ltd and Mr Seed in the sum of $3000, together with reasonable disbursements to be fixed by the Registrar.

[14]     Mr Mikitasov’s cross application for costs is dismissed.

P R Heath J

Delivered at 3.00pm on 27 March 2013