Park as Executor of the Estate of Stirling v Stirling HC Whangarei CIV-2009-488-57
[2011] NZHC 1420
•3 November 2011
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CIV-2009-488-57
IN THE MATTER OF Mining Permit # 41786 issued under the
Crown Minerals Act 1991
AND IN THE MATTER OF an application for Judicial Review under
Part 1 of the Judicature Amendment Act
1972
BETWEEN DESMOND JOHN PARK AS EXECUTOR OF THE ESTATE OF GRAHAM HERBERT STIRLING Plaintiff
ANDMARGARET EVE BIRKBECK STIRLING
First Defendant
Hearing: (on papers)
Appearances: J L Foster for the Plaintiff
J G Ross for the First Defendant
L A Andersen for the Second Defendants
No appearance required for the Third Defendant
Judgment: 3 November 2011 at 3:00 PM
JUDGMENT OF WOODHOUSE J (Costs)
This judgment was delivered by me on 3 November 2011 at 3:00 p.m. pursuant to r 11.5 of the High Court Rules 1985.
Registrar/Deputy Registrar
……………………………………
PARK V STIRLING HC WHA CIV-2009-488-57 3 November 2011
Continued …
ANDBLAIR ANDREW STIRLING, BRENDAN HUGH STIRLING AND JASON PAUL STIRLING
Second Defendants
ANDTHE ATTORNEY-GENERAL IN RESPECT OF THE MINISTER OF ENERGY
Third Defendant
[1] The plaintiff, having succeeded, seeks costs against the first and second defendants. No costs are sought against the third defendant because of the agreement recorded at [7] of the substantive judgment.
[2] The first and second defendants challenge the quantification of costs. They also contend, for different reasons, that there should be no award of costs in any event.
[3] The plaintiff seeks costs of $53,656. This is on a 2B basis, apart from the list of documents, discovery, inspection and preparation. Costs on a 2C basis are sought for the first three items and an additional allowance is sought for preparation. It is appropriate to record my conclusions on the plaintiff’s claims for 2C and additional costs before considering the grounds on which the first and second defendants oppose an award of any costs. It is appropriate to do this because my conclusion on quantum has some bearing on my conclusion on the opposition by the defendants to any award of costs.
[4] The plaintiff seeks costs on a 2C basis for preparation of the list of documents, discovery and inspection “because of the amount of discovery and inspection involved”. Ms Foster’s memorandum notes that the plaintiff’s list of documents “ran to 35 pages and involved a consideration of 14 folders … It is estimated that they contain nearly 2,800 documents.” Ms Foster noted that the second defendants discovered 750 documents and the third defendant discovered 150 documents.
[5] The discovery by the third defendant is not relevant. I am not otherwise persuaded that there are grounds for allowing costs for the matters relating to discovery and inspection under band C. The total sought by the plaintiff, under band C, is $33,600 out of the total costs sought of $53,656. On a proportional basis this is excessive. I also agree with Mr Ross’s submission that “the factual matrix in this case was very narrow”. As Mr Ross also noted the hearing occupied less than a day, there were four witnesses, 37 pages of notes of evidence and a common bundle of documents in two volumes. A reasonable amount of discovery by the plaintiff is
likely to have been directed to the quite separate claim against the third defendant. And this may have had a bearing on the extent of discovery by the second defendants.
[6] In any event, to an extent there is an element of “swings and roundabouts” in assessing costs on a scale basis. The scale allowance for some items not infrequently will be in excess of the actual time involved, or for other reasons may result in an allowance in dollar terms which is more than would be justified if the item was assessed in isolation. The principle applying to the determination of costs in r 14.2(g) is also relevant, although often ignored. It provides that, “so far as possible the determination of costs should be predictable and expeditious”. This, and the other principles in r 14.2, have relevance to this application as a whole, including the defendants’ opposition to payment of costs.
[7] The plaintiff seeks an additional two days for preparation, under band B. The scale allowance is two days. I am not persuaded that there should be any increase above the two days already allowed under band B in respect of a hearing which, as already noted, occupied less than a day and was narrowly focused.
[8] For reasons discussed below, I am not persuaded that there should be no award of costs against the first defendant. In relation to the second defendants, Jason and Blair Stirling were granted legal aid. Mr Andersen advised that Brendan Stirling could not have defended the proceeding if legal aid had not been available to his brothers and the reason Brendan Stirling did not get legal aid appears to be that his wife’s income was taken into account. Essentially for these reasons Mr Andersen submitted that there should be no award of costs against Brendan Stirling. For reasons also set out below, I am satisfied that there should be an order against Brendan Stirling, but that this needs to be for a quantified portion, not for the total. I also consider it appropriate that the order against the first defendant, Mrs Stirling, should be for 50% of the costs for which the first and second defendants would, in principle, be jointly and severally liable, together with some costs specific to Mrs Stirling.
[9] The costs on a 2B basis that would be applicable to the first and second
defendants on a joint and several basis are as follows:
Item Description Amount ($) 1 Commencement of proceeding 4,800 4.5 Plaintiff’s list of documents 2,400 4.10 Memoranda for case management conferences 3,200 4.11 Appearances at case management conferences 2,400 4.18 Sealing judgment 376 8 Preparation for hearing 3,200 9.1 Appearance at hearing 1,600 $17,976
Costs: first defendant
[10] One-half of the above total is $8,988. There are some further scale items which I consider the first defendant should have sole liability for. These are as
follows, together with half of the other items.
Half of “joint” costs 8,988 4.6 Plaintiff’s production of documents for first defendant 1,600 4.7 Plaintiff’s inspection of first defendant’s documents 2,400 4.12 Plaintiff’s application for substituted service on first defendant 960 4.18 Order for substituted service 320 $14,268
[11] The first defendant submits that there should be no order for costs against her on a number of grounds. She submits, firstly, that her age and health are such that there should be no order. I do not consider that these matters provide grounds for declining an order to pay 50% of scale costs. The first defendant referred to the history of earlier dealings between her and Graham Stirling, difficulties encountered in particular in dealings with Graham Stirling, and her dealings with the second defendants. These are not relevant considerations warranting refusal or even reduction of costs. The earlier dealings with Graham Stirling led to litigation and
costs will have been dealt with, or could have been dealt with, in the usual way at that stage. The first defendant was in fact successful in both of the earlier proceedings, in one of which she obtained a judgment against Graham Stirling and in the second she successfully struck out Graham Stirling’s claim. And it was these proceedings, and the result of them, which in considerable measure meant that the defence of the present claim was not justified. The first defendant nevertheless actively defended the claim.
[12] My overall assessment is that the first and second defendants adopted an unreasonable position in defending the claim that had to be brought because of the legal technicalities arising under the Crown Minerals Act 1991 and the way in which the permit had been dealt with in a formal sense. In relation to the conclusions in my substantive judgment, the first defendant was well aware of the effect of the judgment of Keane J: see [34]. The second defendants were advised quite expressly: again see [34]. The second defendants were further put on implicit notice because of the disclaimer in the deed of settlement between the first and second defendants. The unreasonableness of the position adopted by the first and second defendants was amplified by the first defendant’s successful strike out application, being an application the second defendants were well aware of: see [36]-[43]. The defences presented at the hearing were ones going to matters of form rather than ones going to substantive merit.
[13] There is an order that the first defendant pay costs to the plaintiff of $14,268.
Costs: second defendants
[14] In relation to the second defendants, half of the costs on a 2B basis, together with items relating specifically to the second defendants, would be as follows:
Half of “joint” costs 8,988 4.6 Plaintiff’s production of documents 1,600 4.7 Plaintiff’s inspection of second defendants’ documents 2,400 $12,988
[15] Section 40 of the Legal Services Act 2000 makes provision in respect of the liability of legally aided persons for costs. An order for costs may only be made against Jason and Blair Stirling if there are exceptional circumstances: s 40(2). I am not satisfied that there are exceptional circumstances as contemplated by the Legal Services Act.
[16] The question then is whether Brendan Stirling should have liability for some or all of the costs assessed as against the second defendants. The substance of the submission for Brendan Stirling, noted at [8] above, is that he should be treated as if he had been granted legal aid. I do not consider that this would be a principled basis for relieving Brendan Stirling from all liability for any costs. What is more, as Ms Foster noted, it appears from Mr Andersen’s submissions for Brendan Stirling that the costs of his defence were met by the legal aid available to his brothers. If there is no order against him for costs, he will have incurred no liability for any costs, in spite of his choosing to defend the proceeding and doing so unsuccessfully. In addition, his brothers have ended up with liability for the defence in that Jason Stirling is required to make a repayment for legal aid of $4,420 and Blair Stirling is required to repay $7,540. The repayments are to be made by modest weekly instalments.
[17] For these reasons I conclude, contrary to Mr Andersen’s submission, that there should be an order for some costs against Brendan Stirling. On the other hand, in exercise of my discretion under r 14.1, I do not consider that Brendan Stirling should be exposed to liability for all of the costs that I have assessed in principle as against all three of the second defendants.
[18] In determining the portion that Brendan Stirling should pay I consider that the following matters are relevant, in addition to matters already discussed. The second defendants are the sons of Brian Stirling. As recorded in the substantive judgment Brian Stirling was Graham Stirling’s partner in the quarrying business. For reasons recorded in the substantive judgment, the second defendants derived no benefit from their father’s estate in respect of their father’s share of the business and the land. That did not occur through any fault on the part of the plaintiff, as executor of Graham Stirling’s estate. However, I consider that if matters had been handled
differently by Graham Stirling and the first defendant, the result for the second defendants might have been different. As it is, they have derived no benefit, directly or through their father’s estate, from the quarrying business. On the other hand the beneficiaries of Graham Stirling’s estate have benefitted substantially from the sale to Fulton Hogan. The beneficiaries, and the plaintiff in his formal capacity as executor of the estate, again cannot be criticised for that, but I do not consider that I can ignore the somewhat fortuitous financial consequences for the beneficiaries of Graham Stirling’s estate in assessing the outcome for Brendan Stirling in relation to costs. His assets and income are plainly modest. Against this, any adjustment in his liability to the estate for costs will have a very modest impact, in relative terms, on the value of the estate.
[19] My conclusion in relation to Brendan Stirling’s liability is that he should pay one-third of the total; that is to say, on a rounded basis, $4,300. Mr Stirling has leave to apply to pay that by instalments on sufficient proof of his financial circumstances.
[20] In relation to Jason and Blair Stirling an order can be made pursuant to s 40(5) specifying the order for costs that would have been made against each of them were it not for the effect of the other provisions of s 40. I would have ordered each of them to pay $4,300 in costs together with a share of the disbursements as calculated below.
Disbursements
[21] In respect of the disbursements claimed by the plaintiff I allow the following as disbursements recoverable generally against the first and second defendants:
Filing fee 1,100.00 Setting down fee 2,600.00 Copying bundle of documents 528.87 $4,228.87[1] [1] I note that the total recorded in the schedule attached to Ms Foster’s memorandum, and repeated in Mr Ross’s memorandum, is $3,761.65. There is an arithmetical error in the addition. Also the claim for “photocopying costs Crown Law” is not allowed.
[22] The first defendant is liable for half of the above disbursements and further
disbursements applying specifically to her as follows:
Half the general disbursements 2,114.43 Fee on application for substituted service 600.00 Service fees 652.69 $3,367.12
[23] The assessment of disbursements against the second defendants is as follows:
Half the general disbursements 2,114.43 Service fees 517.50 Photocopying 239.00 $2,870.93
Brendan Stirling is liable for one-third of that total, $956.97, together with the costs of $4,300. The liability of Jason and Blair Stirling is specified pursuant to s 40(5) of the Legal Services Act at $956.98 each, together with costs of $4,300 each.
[24] There are orders for costs and disbursements accordingly.
Woodhouse J
Counsel:
Ms J L Foster, Barrister, Auckland
Mr J G Ross, Barrister, Whangarei
Mr L A Andersen, Barrister, DunedinCopy to:
Mr H L Dempster, Crown Law, Wellington
Mr G Bilkey (plaintiff ’s instructing solicitor), Graham & Co., Solicitors, AucklandMr G Swanepoel (first defendant’s instructing solicitor), SwanLaw, Solicitors, Whangarei
Mr J D Polson (second defendants’ instructing solicitor), Solicitor, Dunedin
0
0
1