Paul v Jade Residential Limited

[2019] NZHC 1250

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2018-441-29

[2019] NZHC 1250

BETWEEN

MURRAY PAUL AND MARIE PAUL

Appellants

AND

JADE RESIDENTIAL LIMITED

Respondent

On the papers

Counsel:	K A Lomas for Appellants M B Lawson for Respondent
Judgment:	5 June 2019

JUDGMENT OF GRICE J

(Costs)

[1]The appellants, the Pauls, apply for costs in relation to their successful appeal.

[2]        My decision dated 1 March 2019 found the District Court Judge erred in relation to one aspect of liability and the appeal was allowed.1 The matter is not concluded as the Judge had granted leave for further evidence to be adduced concerning quantum. That is yet to be dealt with.

The Pauls’ application for costs

[3]        The Pauls seek costs calculated in a schedule attached to its memorandum. The costs are calculated on a 2B basis in respect of all steps taken in the proceedings. Supporting documentation for the disbursements claimed are attached.

1      Paul v Jade Residential Limited [2019] NZHC 304.

PAUL v JADE RESIDENTIAL LIMITED [2019] NZHC 1250 [5 June 2019]

[4]        The Pauls say they are entitled to costs as they are the successful party.2 They also submit they had attempted to resolve costs without the need for memoranda to be filed. The Pauls offered to accept the sum of $26,555.49 for costs and disbursements. This compares to approximately $30,000 which is now sought with supporting documentation. Jade Residential Ltd did not respond to that proposal.

[5]Jade Residential Ltd opposes an order for costs on the basis that:

(a)The calculation of scale costs requires the provision of invoices by the claiming party in order to establish that costs have actually been incurred;3

(b)There is a duplication of claims in relation to preparation of written submissions – one set relates to the appeal and the other to the cross- appeal. These were not separate proceedings as the cross-appeal was an integral part of the appeal hearing. The appeal and cross-appeal are interrelated and intertwined. Therefore, costs should not be sought for each three days’ time allocation for preparing written submissions on both the appeal as well as three days preparing written submissions on the cross-appeal.

[6]The Pauls reply saying:

(a)The costs claimed have actually been incurred by them. This was also confirmed by the counsel for the Pauls at a subsequent hearing on a related matter.

(b)They are entitled to costs for preparation of the cross-appeal as the grounds advanced by the respondent were separate and distinct from those raised by the Pauls in their appeal.

(c)Rule 14.2(1)(c) of the High Court Rules 2016 provides:

2      High Court Rules 2016, r 14.2(1)(a).

3      Rule 14.2(1)(f).

Costs should be assessed by applying the appropriate daily recovery rate to the time considered reasonable for each step reasonably required in relation to the proceeding or interlocutory application:

(d)The claimed steps were reasonably required including the filing of submissions on the appeal, the cross-appeal and on the supplementary issue of “good faith”. They acknowledge the good faith submissions were more limited than the other submissions and have sought costs for those on a 2A basis.

(e)If I am not prepared to allow costs for preparation of each of the three sets of submissions, they suggest the costs on one set of submissions be allowed on a 2C basis to reflect the time associated with the preparing and filing of the three sets of submissions.4

[7]        The Pauls have also sought costs for the memorandum in reply on the basis Jade Residential Ltd should have engaged with the Pauls in relation to the calculation of costs.

Analysis

[8]        Counsel for the Pauls have confirmed that the costs actually incurred were in excess of the costs claimed. There is no requirement to produce the fee invoices for costs, as long as the Pauls satisfy me that the costs claimed were equal to or less than those actually incurred.

[9]        I am satisfied with counsel’s confirmation that the costs incurred did exceed those now claimed.

[10]      In an appeal of this nature, which had raised a number of points of law, the costs claimed do not appear excessive.

[11]      In relation to the claim for costs for the preparation of submissions, I accept the Pauls’ submission that it is appropriate for a separate claim to be allowed for the

4      Rule 14.2(1)(b).

cross-appeal and good-faith submissions. The cross-appeal raised quite different matters than those dealt with in the appeal. The further submissions on good faith were required as a result of issues which arose in the course of the appeal. The Pauls are entitled to those costs in relation to preparation of the good faith submissions and they have recognised that some discount should be allowed on a 2A basis.

[12]      There is no reason why costs should not follow the event. The appellant is entitled to costs and the appropriate category is 2B. The appeal was not straightforward and called for the time and level of expertise contemplated by category 2B.

[13]      Accordingly, costs are awarded in terms of the Pauls’ 18 March 2019 schedule A (costs of $28,3215 and disbursements of $2,341.05) in favour of the Pauls against Jade Residential Ltd.

Grice J

Solicitors:

Braun Bond & Lomas Ltd, Hamilton Lawson Robinson, Napier

5      This total includes costs for the memorandum filed in respect of costs.