Nienkemper v Ridling

[2024] NZHC 2190

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-3120 [2024] NZHC 2190

UNDER

Section 124 District Court Act 2016 and Rule 20.4 High Court Rules 2016

BETWEEN

ANTHONY CLEMENTS KARLOFF NIENKEMPER

Appellant

AND

MARK RIDLING

Respondent

Hearing:	On the papers
Counsel:	K E Hogan for Appellant P J Muir for Respondent
Judgment:	6 August 2024

JUDGMENT OF O’GORMAN J

[as to costs]

This judgment was delivered by me on 6 August 2024 at 2.30 pm pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

…………………………………

Solicitors/Counsel:

K E Hogan, Barrister, Auckland Zhang Law, Auckland

Steindle Williams Legal, Auckland

NIENKEMPER v RIDLING [2024] NZHC 2190 [6 August 2024]

[1]                 On 26 June 2024, I issued my judgment determining applications for further evidence to be adduced on appeal.1 One application was brought by Mr Nienkemper and another by Mr Ridling.

[2]In my decision:

(a)I  granted  leave  (unopposed)  for  admission  of  the  affidavit  of   Mr Gibbons, a specialist property and resource management lawyer, about the rights and obligations arising under the disputed easement.

(b)I granted leave for some further evidence from Mr Nienkemper to be adduced on appeal and for the production of a video.

(c)I otherwise declined leave for the balance of the two applications.

(d)In the circumstances of such a mixed outcome, I indicated my inclination that costs should lie where they fall, but I set a timetable allowing the parties to file memoranda on the issue of costs.

[3]                 The appellant has filed a memorandum seeking costs of $6,214 on a 2B basis. In terms of comparing this with actual costs, the appellant’s memorandum states that Mr Nienkemper incurred $6,640 (excluding GST) for work relating to his application to adduce fresh evidence, of which approximately $1,200 related to Mr Gibbons’ evidence.

[4]                 The respondent’s position is that costs should lie where they fall. In the alternative, costs should be reserved.

[5]                 The Court has a general discretion to award  costs  under  r  14.1  of  the  High Court Rules 2016, but r 14.2 provides a clear statement of the principles to be applied in most cases.

1      Nienkemper v Ridling [2024] NZHC 1714.

(a)Under r 14.2(1)(a), the party who fails with respect to a proceeding or an interlocutory application should pay costs to the party who succeeds.

(b)As the default, r 14.2 provides for costs to be determined based on categorisation and bands.2 Category 2 applies to proceedings of average complexity3 and Band B applies if a normal amount of time is considered reasonable.4

(c)Rule 14.2(1)(f) provides that an award of costs should not exceed the actual costs incurred by the party.

[6]                 Rule 14.8 of the High Court Rules creates a presumption that costs on opposed interlocutory applications are to be fixed by the court when the application is determined. In Chapman v Badon Ltd the Court of Appeal said:5

[12]… Apart from applications for summary judgment, the general approach to costs in respect of interlocutory applications is that they are dealt with at the time the applications are determined rather than being held over until the outcome of the proceedings is known. This reflects the fact that the merits of particular applications and the merits of the substantive proceedings are different matters.

[7]                 Where “approximately equal success and failure attended the efforts of both sides”, it may be appropriate that costs lie where they fall.6

Analysis

[8]                 In this case, having reviewed the submissions of both parties, I remain of the view that the merits and outcome were approximately balanced.

(a)The application to adduce fresh evidence from Mr Gibbons succeeded, but it was unopposed (partly because the respondent considers the evidence assists his arguments). Furthermore, this expert evidence

2      Rule 14.2(b) and (c).

3      Rule 14.3(1).

4      Rule 14.5(2).

5      Chapman v Badon Ltd [2010] NZCA 613, (2010) 20 PRNZ 83 at [12] (footnote omitted).

6      Packing In Ltd (In Liq) Formerly Known as Bond Cargo Ltd v Chilcott (2003) 16 PRNZ 869 (CA) at [5], referenced in Staples v Freeman [2020] NZHC 1124 at [60].

could have been adduced in the District Court, so I consider those issues neutral.

(b)For Mr Nienkemper’s affidavit, much of what I permitted to be adduced would normally have been included in submissions if the appellant had been legally represented. Other aspects that were admitted are offset by the excluded evidence, which the respondent reasonably opposed.

(c)In my assessment, the respondent’s separate application about the alleged altercation at the hearing did not materially add to costs of the hearing, given that the same subject matter was addressed for the purposes of the appellant’s application on that aspect, which also failed.

[9]                 Overall, I do not consider this is a situation in which one party succeeded more than the other.

[10]             I do not consider it appropriate to reserve costs, because the issues arising on the application to adduce further evidence do not have any necessary correlation with the substantive merits of the appeal.

[11]My decision is that costs should lie where they fall.

O’Gorman J