Norris Ward McKinnon v Kaye - [2015] NZHC 2093

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2009-019-1473 [2015] NZHC 2093

BETWEEN
NORRIS WARD MCKINNON

Plaintiff/Counterclaim Defendant

AND

ANTHONY PRATT KAYE AND MORVA KAYE

Defendants/Counterclaim Plaintiffs

Hearing: On the papers

Counsel:

Counterclaim Defendants in person
R J Latton for Plaintiff/Counterclaim Defendant

Judgment:

31 August 2015

COSTS JUDGMENT OF M PETERS J

This judgment was delivered by Justice M Peters on 31 August 2015 at 4.50 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date: ...................................

Solicitors: Kennedys, Auckland

Copy for: Mr and Mrs Kaye, Hamilton

NORRIS WARD MCKINNON v KAYE [2015] NZHC 2093 [31 August 2015]

[1] I gave judgment for the Counterclaim Defendant (“Norris Ward”) in this matter on 14 May 2015.1 Since then, I have received memoranda from the parties regarding costs and they are agreed that I may deal with the matter on the papers.

[2] Although in their most recent memorandum of 7 August 2015, the Counterclaim Plaintiffs (“Mr and Mrs Kaye”) proposed that I defer the matter of costs pending determination of their appeal, it is better to determine the issues as to costs now.

[3] Norris Ward is entitled to an award of costs and disbursements. The issue is as to quantum.

[4] Norris Ward’s first claim was set out in their memorandum of 22 May 2015. The claim was revised following my minute of 29 July 2015.

[5] The gist of Norris Ward’s present claim is that:2

(a) Mr and Mrs Kaye are entitled to an award of costs of $13,402 in respect of a claim brought by Norris Ward but discontinued in November 2012;

(b) Norris Ward is entitled to costs on a 2B basis as set out in Appendix 2

of counsel’s memorandum of 5 August 2015, those costs totalling

$52,434. From this sum, $13,402 must be deducted.

(c) Norris Ward should have increased costs in respect of steps taken after

1 May 2012, being the date of a “Calderbank” (without prejudice save as to costs) offer from Norris Ward to Mr and Mrs Kaye. The proposed percentage increase is 75 per cent, which would award Norris Ward an additional $26,566.50 in respect of costs for steps
after 1 May 2012, those costs totalling $35,422 (on a 2B basis); and

1 Norris Ward McKinnon v Kaye [2015] NZHC 1025.
2 Memorandum of Counsel for Counterclaim Defendant dated 5 August 2015. See also Mr and Mrs Kaye’s Memorandum re Costs dated 7 August 2015; and Memorandum of Counsel for Counterclaim Defendant dated 31 August 2015.

(d) Norris Ward should have an award of disbursements of $47,500.96.

[6] The only matter as to which there can be dispute is whether Norris Ward are, in principle, entitled to an award to increased costs and, if so, in what sum.

[7] The Court may make an order for increased costs in the circumstances set out in High Court Rules, r 14.6(3). The ground relied upon in the present instance is r 14.6(3)(b)(v) which, in summary, permits the Court…

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.

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Details

Case: [2015] NZHC 2093
Decision Date: 31 August 2015

CaseChat Overview and Summary

The case of Norris Ward McKinnon v Kaye involved the High Court of New Zealand, specifically the Hamilton Registry, where Norris Ward McKinnon sought to recover costs from Anthony Pratt Kaye and Morva Kaye. Norris Ward McKinnon had initially filed a claim against the Kayes, which was later discontinued in November 2012. Following this, the Kayes filed a counterclaim against Norris Ward McKinnon. The matter at hand was the determination of costs incurred during the proceedings.

The primary legal issue before the court was whether Norris Ward McKinnon was entitled to increased costs due to the Kayes' refusal to accept a settlement offer made in May 2012. The court also had to decide the appropriate quantum of costs and disbursements to be awarded to Norris Ward McKinnon. The court needed to consider the High Court Rules, particularly rule 14.6(3), which allows for increased costs if a party fails to accept a reasonable settlement offer without justification.

The court found that the Kayes had rejected a settlement offer from Norris Ward McKinnon without reasonable justification. The offer, which was detailed and comprehensive, was not countered or responded to in writing by the Kayes. This rejection was deemed unreasonable, and as a result, Norris Ward McKinnon was entitled to increased costs. However, the court found that a 75% increase was excessive. Instead, a 50% increase on costs incurred after 1 May 2012 was deemed fair and reasonable. The court awarded Norris Ward McKinnon costs and disbursements accordingly, totaling $39,032 for costs incurred before 1 May 2012, an additional $17,700 for costs incurred after this date, and $47,500.96 for disbursements. Leave to apply for any GST-related issues was also granted.

Orders