Nukrake v Marsman HC New Plymouth CIV 2007-443-386
[2008] NZHC 2479
•5 August 2008
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
CIV 2007-443-386
UNDER the Land Transfer Act 1952
IN THE MATTER OF an application under section 145A not to have a caveat lapse
BETWEEN ROLAND JOHANNES NIJKRAKE Plaintiff
ANDWILLEM ROBERT MARSMAN, UTA BLEIDISTEL AND THK TRUSTEES LIMITED
Defendants
Judgment: 5 August 2008 at 11.00 am
JUDGMENT AS TO COSTS
OF ASSOCIATE JUDGE D.I. GENDALL
This judgment was delivered by The Registrar on 5 August 2008 at 11.00 am pursuant to r 540(4) of the High Court Rules 1985.
Solicitors: Buddle Findlay, Solicitors, PO Box 2694, Wellington
Dennis King Law, Lawyers, PO Box 1092, New Plymouth 4340
RJ NIJKRAKE V WR MARSMAN, U BLEIDISTEL AND THK TRUSTEES LIMITED HC NWP CIV 2007-
443-386 5 August 2008
[1] Paragraph 89 of my judgment issued in this proceeding on 26 September
2007 upholding a caveat registered over a New Plymouth property by the plaintiff, I awarded costs on a Category 2B basis to the plaintiff together with reasonable disbursements as may be approved by the Court.
[2] Counsel have advised that despite attempts they have been unsuccessful in agreeing costs between the parties. An approach has therefore been made to the Court to fix the amount to be paid by way of costs and disbursements.
[3] On this counsel for the plaintiff has filed a memorandum dated 8 July 2008 and counsel for the defendants a memorandum dated 24 July 2008.
[4] I have now had an opportunity to consider those memoranda and give my decision on the issue of quantum before the Court.
Costs
[5] So far as costs are concerned at paragraph [4] of his memorandum counsel for the plaintiff itemises as a sub-total $5,280.00 representing 3.3 days at $1,600.00 per day for the work involved under Schedule 3 at Items 26, 28, 29, 30 and 31.
[6] Counsel for the defendants has indicated that no objection is taken to this figure.
[7] Next, however, counsel for the plaintiff seeks a further $1,600.00 for 1 days work for the preparation of affidavits in reply to affidavits provided by the defendants. On this counsel for the defendants notes that there is no provision under Schedule 3 of the High Court Rules for preparation of affidavits in reply.
[8] Notwithstanding this, it is clear here that detailed affidavits of Messrs Bos
Nijkrake and Heerze were provided in reply. An additional fee of $1,600.00 for
completion of these affidavits, in my view, is reasonable under all the circumstances here, and in terms of the Court’s discretion this amount should be approved.
[9] Total costs calculated on a Category 2B basis at $6,880.00 are approved.
Disbursements
[10] On the question of disbursements, a filing fee of $1,100.00 and $100.00 service fee are claimed. These are not opposed by counsel for the defendants and are approved.
[11] Next, however, counsel for the plaintiff seeks a range of disbursements incurred in the Netherlands. These disbursements represent notarial fees paid for the witnessing of three affidavits and Apostille fees paid for verification of the affidavits. A full recovery of the fees paid to Advocate Heerze as expert witness are also sought.
[12] These Netherlands expenses, as set out in the memorandum from counsel for the plaintiff are noted as follows:
“EXPENSES COURT CASE CAVEAT IN THE NETHERLANDS
confirming and drawing deed
EURO Notarial Fee 568.00
20% office cost 113.60
Subtotal 681.60
19% VAT 129.50Subtotal 811.10
Heerze affidavit 960.00
25% office cost 240.00
Subtotal 1200.00
19% VAT 228.00
translation service
1428.00
HR, BN: 68 x 20 1360.00
Apostille fees court 168.00
TOTAL (Euros) 3,767.10”
[13] On this, counsel for the defendants contends that it is not usual to claim costs associated with the execution of affidavits and that these may reasonably be viewed as part of the costs of preparation.
[14] Counsel for the defendants also go on to question whether all the amounts, in fact, are disbursements in the proper sense. He notes that the cost of preparing Mr Heerze’s affidavit is an item said to be within the ambit of Schedule 3. Further the translation services are more in the nature of affidavit preparation then in the nature of getting finalised documents into Court and served.
[15] All in all, counsel for the defendants suggests that if the defendants are required to make a contribution to these disbursements then that amount to be considered reasonable should be no more than one half the actual cost of those items.
[16] The total cost in Euros for these disbursements is noted at 3,767.10. It is difficult to tell on the face of the material provided the precise position in the Netherlands regarding the work that has been undertaken and the standard charges required for this work. The affidavit of Advocate Heerze does seem to attract a total charge of 1,428 euros (plus a possible translation service) and it seems likely that part, if not all of this, might already be covered by the costs awarded for preparation of the reply affidavits.
[17] That said, under all the circumstances here, I am of the view that a fair conclusion is that an amount of 1,883.55 euros, representing one half of the expenses claimed is recoverable as a disbursement here.
[18] In the exercise of the Court’s discretion therefore I award as total disbursements in this matter the following:
a) $1,100.00 filing fee and $100.00 service fee – totalling NZ$1,200.00. b) Netherlands expenses with regard to the affidavits 1,883.55 euros.
Defendants’ Costs Award
[19] It is noted that after an aborted hearing in this matter on 9 August 2007, costs were awarded in favour of the defendants against the plaintiffs. These were to be set off against the plaintiff’s ultimate costs.
[20] The amount of the defendants’ aborted costs and disbursements are as follows:
a) Costs – One half day $ 800.00 b) Disbursements Return Airfares – New Plymouth/Wellington $ 452.00 Taxi Fares $ 68.40 Changed Flight Fee $ 15.00 TOTAL $1,335.40
Conclusion
[21] An order is now made therefore that the defendant is to pay to the plaintiff total costs and disbursements in accordance with my 26 September 2007 judgment amounting to costs of $6,880.00 and disbursements of both NZ$1,200.00 and
1,883.55 euros minus the sum of NZ$1,335.40 for costs and disbursements awarded to the defendants on the aborted 9 August 2007 hearing.
‘Associate Judge D.I. Gendall’
0
0
1