Patel v Maqbool HC Auckland CIV 2009-404-7323

[2010] NZHC 1706

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2009-404-007323

BETWEEN  JAYSHREE RATILAL PATEL Applicant

AND  JALALUDIN KHAN MAQBOOL Respondent

CIV 2009-404-007323

BETWEEN  JALALUDIN KHAN MAQBOOL Applicant

ANDJAYSHREE RATILAL PATEL Respondent

Hearing:         (On the papers)

Counsel:         D G Smith for the Applicant/Respondent

J K Maqbool in Person

Judgment:      3 September 2010 at 4:45 pm

[COSTS] JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie on 3 September 2010 at 4:45 pm

pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors:

Paxton-Penman et al, P O Box 5530, Auckland
D G Smith, P O Box 3799, Auckland

Copy to:

J K Maqbool, 12 Jubilee Avenue, Onehunga, Auckland

J R PATEL V J K MAQBOOL HC AK CIV 2009-404-007323  3 September 2010

[1]      My judgment in this matter was issued on 27 May 2010.  I ordered payment of a lump sum to the applicant/respondent, Ms Patel, and recorded that she was entitled to her costs on a 2B basis, together with her reasonable disbursements.

Submissions

[2]      I have received memoranda from Mr Smith on behalf of Ms Patel and from

Mr Maqbool on his own behalf.

[3]      Mr  Smith  advises  that  he  has  endeavoured  to  reach  agreement  with Mr Maqbool in relation to the appropriate costs award, but that Mr Maqbool has not responded.  He seeks that the costs incurred in relation to the proceedings while they were before the Family Court should be dealt with in accordance with the District Courts Rules, and that the costs in relation to the proceedings when they were before this Court should be dealt with in accordance with the High Court Rules.  He has annexed to his memorandum a schedule setting out the various steps taken, the appropriate time allocation noted in the rules for each step, and the amount claimed in relation to each step by reference to the applicable schedules.

[4]      Mr Maqbool submits that the first three steps in the Family Court proceeding listed by Mr Smith occurred prior to 1 June 2006, when a lower daily recovery rate applied.  He argues that he can only be liable for that lower rate.  Further, he submits that the times claimed for certain steps are excessive.

Analysis

[5]      I have considered the various matters raised in the memoranda filed.

[6]      The proceedings were transferred to this Court pursuant to s 14 of the Family Courts Act 1980 and the relevant rules contained in the Family Court Rules 2002. Section 14 provides that this Court has the same power to adjudicate on the proceedings as the Family Court had.   The Family Court has its own rules – the Family Court Rules 2002.  Rule 207 in those rules provides that the Family Court

has a discretion to determine the costs of a proceeding, or any step in or matter incidental to a proceeding.  In exercising that discretion, the Court can apply any or all of rr 4.2 to 4.12 of the District Courts Rules.

[7]      I agree with Mr Smith that as a consequence, it is appropriate to apply the District Court’s rules to that part of the proceedings which occurred before the Family Court.

[8]      I have considered the Family Court file.   Insofar as I can see, each of the steps outlined in Mr Smith’s schedule was taken, and I note that Mr Maqbool does not contest this.  Rather he contests the time taken in relation to the steps.

[9]      Mr Maqbool challenges specifically the first step in respect of which costs are claimed.  It is referred to in Mr Smith’s schedule as being an application under the Property (Relationship) Act, and two days are claimed for it.  I suspect that this relates to the hearing before Judge Fleming.  According to the Family Court file, that hearing lasted only one day.

[10]     Mr Maqbool is also on strong ground when he asserts that the appropriate daily recovery rate for those steps taken prior to 1 June 2006 should be the rate set out in what was Schedule 2 to the District Courts Rules 1992.  Rule 14 of the District Courts (Amendment) Rules 2006 provides that costs for each step or item in proceedings need to be calculated at the daily recovery rate that applied at the time the step in the proceeding was taken.  It will be necessary for Mr Smith to revise his schedule.  The daily recovery rate at the relevant time was $650 per day.

[11]     All other times claimed are in accordance with the recovery rates allowed by the District Courts Rules 2009.  Rule 4.5 of the District Courts Rules records that a reasonable time for a step in a proceeding is the time specified for that step in Schedule 3, or a time determined by analogy with that step if Schedule 3 does not apply, or the time assessed as likely to be required for the particular step, if no analogy can usefully be made.  Here, the time claimed for each of the steps set out in Mr Smith’s schedule is that detailed in Schedule 3.   These allocated times do not

appear to me to be excessive.  I suspect that Mr Maqbool has little appreciation of the time involved in preparing for Court proceedings.

[12]     Costs claimed in respect of that part of the proceedings that occurred in the High Court have been calculated by a reference to the relevant time allowances and recovery rates contained in the High Court Rules.

[13]     Costs are always in the discretion of the Court.  Nevertheless, the applicable costs rules which apply to proceedings in the Family Court, the District Court and the High Court, are designed to provide a measure of certainty to the parties.  The costs regime is of a regulatory character, and it is important that the integrity of the

scheme  be  maintained.[1]      The  general  discretion  open  to  the  Courts  should  be

exercised only in situations not contemplated by the specific rules, or when Judges are satisfied that it is appropriate to do so.

[1] Glaister v Amalgamated Dairies Ltd [2004] 2 NZLR 606 (CA) at [21]-[22].

[14]     In my view, this is not an appropriate case to depart from the costs rules. There is nothing to take this litigation out of the ordinary.

[15]     Accordingly, I fix costs in the sum of $7,238 for that part of the proceedings as occurred in this Court.  Costs in regard to that part of the proceedings as occurred in the Family Court are to be fixed at the rate detailed in the Family Court Rules

2002, and in the District Courts Rules 2009 in respect of those steps which occurred on or after 1 June 2006.  The daily recovery rate applicable in respect of those steps which occurred prior to that date is to be calculated in accordance with the District Courts Rules 1992.  The time allowance in respect of the application heard by Judge Fleming is to be reduced to one day.

[16]     I note that Mr Smith has not sought disbursements.   I do not know if this omission was intentional.   If it was accidental, I reserve to Ms Patel the right to recover her reasonable disbursements.  In the event of a dispute as to the quantum of disbursements, the same is to be resolved by the Registrar.

Wylie J