Mitchell v Mitchell - [2019] NZHC 567

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2017-463-61

[2019] NZHC 567

BETWEEN
HAMUERA WALKER MITCHELL, HOKIMATE KAHUKIWA, PETER STAITE AND VERONICA BUTTERWORTH

Plaintiffs

AND

AND

TE KIRI WHERO EWA MAKARETA MITCHELL

First Defendant

MALCOLM TUKINO SHORT AND ALEXANDER JAMES WILSON

Second Defendant

CONTINUED OVERLEAF

On the papers: At Auckland

Judgment:

26 March 2019

JUDGMENT OF POWELL J

[Costs]

This judgment was delivered by me on 26 March 2019 at 3.30 pm pursuant to R 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

MITCHELL v MITCHELL [2019] NZHC 567 [26 March 2019]

ANDWARWICK MOREHU, RIMINI DENIS PAUL, KATARINA KEREAMA AND DONNA HALL
Third Defendants

ANDTE KOTAHITANGA O NGATI WHAKAUE ASSETS TRUST
Fourth Defendant

AND BRYCE MURRAY
Fifth Defendant

[1] This judgment follows my decision of 19 October 2018 determining that John Kahukiwa and his firm Corban Revell was no longer able to act as either solicitors or counsel for the plaintiffs in this proceeding.1

[2] At the end of my earlier judgment I confirmed that the fourth defendant Assets Trust was entitled to costs on a 2B basis, but reserved leave to apply in the event that there was any dispute with regard to fixing the amounts to be paid.

[3] In the event, the plaintiffs and the Assets Trust have been unable to reach agreement on the amount to be paid and, following the filing of memoranda, have requested the sum to be fixed.

[4] In the meantime the third named plaintiff, Peter Staite, sought leave to be released as a plaintiff in the proceedings. This was not opposed by the other parties, once the costs arising from the application to restrain counsel had been determined. Mr Staite has subsequently filed a memorandum which he disputed liability for costs on the basis of “negligence by both fiduciaries the Assets Trust and Mr Kahukiwa”. Given this position I gave leave for both Mr Kahukiwa and the Assets Trust to respond to the matters that he raised.

[5]There are therefore two matters to be considered:

(a)the amount of costs payable by the plaintiffs to the Assets Trust on the application to restrain counsel; and

(b)whether there is any basis for discounting Mr Staite’s liability as one of the plaintiffs.

Issue One – the amount of costs payable

[6] As noted, both Mr Kinsler on behalf of the Assets Trust, and Mr Warren on behalf of the plaintiffs other than Mr Staite, have undertaken calculations of the amounts payable on a 2B basis. Mr Kinsler’s calculation amounted to $32,892.50 plus

1 Mitchell & Ors v Mitchell & Ors [2018] NZHC 2665.

a 25 per cent uplift and $1,593 disbursements, a total of $41,115.63. Mr Warren’s calculation amounted to $9,732.50 (including disbursements). The difference is primarily the result of the Assets Trust claiming greater amounts at case management conferences, together with significant amounts preparing affidavits, additional preparation time due to the complexity of the application and, as noted, an uplift of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mitchell v Mitchell

Details

AGLC: Mitchell v Mitchell [2019] NZHC 567
Case: [2019] NZHC 567
Decision Date: 26 March 2019

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Mitchell v Mitchell was adjudicated by Powell J on 26 March 2019. The plaintiffs, Hamuera Walker Mitchell, Hokimate Kahukiwa, Peter Staite, and Veronica Butterworth, sought to restrain counsel, specifically John Kahukiwa and his firm Corban Revell, from acting on their behalf. The defendants, including Te Kiri Whero Ewa Makareta Mitchell, Malcolm Tukino Short, Alexander James Wilson, and the Te Kotahitanga o Ngati Whakaue Assets Trust, opposed the application. The court was required to determine two primary issues: the amount of costs payable by the plaintiffs to the Assets Trust on the application to restrain counsel, and whether there was any basis for discounting Mr Staite's liability as one of the plaintiffs.

Regarding the first issue, Powell J found the costs claimed by the Assets Trust to be excessive. The judge concluded that the costs sought under certain items, such as attendance at case management conferences and preparation of affidavits, were not solely related to the matter of restraining counsel. The judge reduced the costs to $9,165.30, reflecting the nature and complexity of the application, and including the disbursements as sought. For the second issue, Powell J found that Mr Staite was not entitled to be excused from liability as one of the plaintiffs. Despite Mr Staite's claims of negligence by the Assets Trust and Mr Kahukiwa, the judge determined that Mr Staite was aware of the issues raised and had actively supported the plaintiffs' opposition to the application to restrain counsel. Therefore, Mr Staite was liable for the costs awarded against the plaintiffs.

In conclusion, the court ordered that the Assets Trust was entitled to costs on the application to restrain counsel in the sum of $9,165.30 plus disbursements of $1,593. Mr Staite was held liable for his share of these costs as one of the plaintiffs.

Orders