Peart v Chandra
[2022] NZHC 665
•1 April 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2019-404-2471
[2022] NZHC 665
UNDER Senior Courts Act 2016 IN THE MATTER
Of a Statement of Claim
BETWEEN
HELEN MARGARET PEART
Plaintiff
AND
UMA CHANDRA
First Defendant
AND
CRAIG GRIFFIN & LORD
Second Defendant
Hearing: On the papers Counsel:
P M Hoskins for Plaintiff
N C King for First Defendant
V S Wethey for Second DefendantJudgment:
1 April 2022
JUDGMENT OF PAUL DAVISON J
This judgment was delivered by me on 1 April 2022 at 4:30pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Corban Revell, Auckland Sinisa Law, Auckland Fee Langstone, Auckland
PEART v CHANDRA [2022] NZHC 665 [1 April 2022]
Introduction
[1] On 15 November 2021, I determined an interlocutory application by the plaintiff for orders directing the first defendant to file an amended statement of defence and amended affidavit of documents. Both counsel were in agreement that it was appropriate for the Court to make the orders. I directed the first defendant to file and serve an amended statement of defence by 26 November 2021 and a further affidavit of documents by 10 December 2022. I also made an order reserving costs and recorded that the plaintiff’s application had been substantially successful.1
[2] The matter was subsequently called in the Duty Judge List on 15 December 2021. The first defendant had filed an amended statement of defence within the specified timeframe but had not filed a further affidavit of documents. She had encountered difficulties in obtaining copies of the relevant documents. Further orders were made and the first defendant subsequently filed and served her amended affidavit of documents on 11 January 2022.
[3] By memorandum dated 16 January 2022 the plaintiff requested that costs on the interlocutory application be determined. On 28 January 2022, I directed the plaintiff and the first defendant to file and serve costs memoranda.2 They have now done so.
The parties’ positions
[4] The plaintiff submits that she was successful in pursuing the interlocutory application and is entitled to costs in accordance with the normal principles.3 She seeks a cost award on a 2B basis. This includes for the Duty List fixture appearance on 15 December 2021 and associated memorandum which were necessary due to the first defendant’s non-compliance regarding the amended affidavit of documents. She also claims for the memorandum of counsel dated 16 January 2022 and for the costs memorandum dated 4 February 2022.
1 Peart v Chandra HC Auckland CIV-2019-404-2471, 15 November 2021 at [8(c)].
2 Peart v Chandra HC Auckland CIV-2019-404-2471, 28 January 2022 at [15]. The second defendant was not involved in the interlocutory application and the plaintiff does not seek any order for costs against the second defendant.
3 High Court Rule 2016, r 14.2(1)(a).
[5] The plaintiff is and was at all material times legally aided. While noting that an award of costs is limited by r 14.2(1)(f) to the total fees payable by the Legal Services Commissioner to counsel,4 she seeks costs of $10,874.50 and disbursements on the basis that the order is made after her counsel has provided evidence of actual costs relevantly charged to the Legal Services Commissioner.
[6] The first defendant submits that there is an issue as to whether the plaintiff’s counsel has already received legal aid payment in respect of the present application and whether the plaintiff receiving costs from the first defendant would therefore result in her being paid twice. The first defendant further notes that the plaintiff’s application was only substantially successful, not completely successful. The entire application was also unnecessary - a simple request to amend the claim or add the discovery was all that was required. Moreover, the plaintiff knew that if unsuccessful on the application, no costs would be awarded against her given that she was legally aided.
[7] As to quantum, the first defendant submits that the Court appearance on 15 December 2021, the associated memorandum and the later memorandum on 16 January 2022, do not warrant costs. The first defendant had difficulty in obtaining documents for the amended affidavit of documents and requested to use the discovery provided by the plaintiff. This was declined until the plaintiff eventually agreed on 3 December 2021. There was accordingly insufficient time before 10 December 2021 to file the amended affidavit of documents resulting in the further callover date on 15 December 2021. The first defendant also submits that costs on the costs application are not warranted.
[8] Given that this interlocutory application was unnecessary and not completely successful, the first defendant submits that the amount claimed by the plaintiff for the remaining steps should be reduced by 25 per cent resulting in a total award of
$6,004.87.
4 See Taunoa v Attorney-General [compensation] (2004) 8 HRNZ 53 (HC) at [43].
Discussion
[9] I consider that the plaintiff is entitled to costs in accordance with the usual principles. There is no issue with the plaintiff receiving an award of costs on the basis that she is legally aided. The plaintiff’s counsel will have received payment from the Legal Services Commissioner. The plaintiff will then be required to repay an amount to the Legal Services Commissioner. There is no concern that the plaintiff will be paid twice. Nor should her entitlement to costs be reduced merely because she is legally aided.5 I also do not accept the first defendant’s submission that the application was unnecessary. While the plaintiff could have requested the first defendant to amend the claim or add the discovery, she was entitled to file an interlocutory application for that purpose. She should not be penalised for doing so.
[10] I do not accept the first defendant’s submission that she had insufficient time to prepare the amended affidavit of documents due to the plaintiff’s delay. I note the following explanation from the plaintiff’s memorandum dated 10 December 2021:
6.[The first defendant stated]: “24th November 2021 the Plaintiff ’s Counsel refused to provide a copy of the affidavit of documents provided to them.” This is incorrect. … Counsel for the first defendant’s emails on 24 November 2021 relate to the amended statement of defence which at that time was due for filing two days later.
7.Counsel for the first defendant first requested the subject affidavit of documents filed by Uma Chandra’s husband in the District Court proceeding, after business hours at 5.57 pm on 2 December 2021. Counsel for the plaintiff provided this affidavit of documents on 3 December 2021 after an exchange of emails on 3 December 2021.
[11] I have read the relevant correspondence between counsel and it accords with the plaintiff’s explanation of events. It is not the case that the plaintiff was responsible for the first defendant being left with only a small window to file the amended affidavit of documents. While I acknowledge the first defendant’s difficulties in obtaining the relevant documents, the plaintiff is nevertheless entitled to recover costs for its appearance on 15 December 2021, for the associated memorandum, and for its subsequent memorandum on 16 January 2022. I decline to award costs to the plaintiff for preparing costs submissions.
5 See Kawhia Offshore Services Ltd v Rutherford HC Hamilton CP61/99, 10 July 2002.
[12] I consider that no overall reduction to the costs otherwise payable is warranted on the basis that the application was unnecessary and not completely successful.
Result
[13] I direct the plaintiff’s counsel to provide evidence to the registrar of the actual costs relevantly charged to the Legal Services Commissioner for the purposes of this application.
[14] On the basis that any award of costs cannot exceed that amount, I award costs to the plaintiff on the interlocutory application on a 2B scale basis totalling $9,918.50 together with reasonable disbursements as fixed by the registrar.
Paul Davison J
0
1