Pfisterer v Claims Resolution Service Limited
[2019] NZHC 1458
•26 June 2019
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2018-409-000649
[2019] NZHC 1458
BETWEEN LUCIA RENATE PFISTERER
Defendant/Counterclaim Plaintiff
AND
CLAIMS RESOLUTION SERVICE LIMITED
Plaintiff/First Counterclaim Defendant
AND
GRANT SHAND BARRISTERS AND SOLICITORS
Second Counterclaim Defendant
Appearances: M S Smith and E Flaszynski for Defendant/Counterclaim Plaintiff A R B Barker QC and G Davis for Plaintiff/First
Counterclaim Defendant
A B Darroch for Second Counterclaim DefendantJudgment:
26 June 2019
Determined on the papers
JUDGMENT OF OSBORNE J
(costs)
Introduction
[1] In a judgment dated 28 May 2019, the Court determined a number of opposed interlocutory applications.1
[2] On the application of Lucia Pfisterer, the defendant/counterclaim plaintiff, the Court granted aspects of her discovery application against both other parties and made
1 Pfisterer v Claims Resolution Service Ltd [2019] NZHC 1179.
PFISTERER v CLAIMS RESOLUTION SERVICE LIMITED [2019] NZHC 1458 [26 June 2019]
an order as to the answering of interrogatories by Claims Resolution Service Ltd (CRS), the plaintiff/first counterclaim defendant, and by Grant Shand Barristers and Solicitors (Grant Shand) ,the second counterclaim defendant.
[3] By the same judgment the Court dismissed an application by Grant Shand for an order for discovery on the part of Mrs Pfisterer.
[4] Costs and disbursements were reserved and are now dealt with, following the receipt of written submissions.
The costs applications
[5]Mrs Pfisterer seeks orders for costs and disbursements:
(a)against Grant Shand on its unsuccessful interlocutory application in the sum of $5,648.90; and
(b)against both CRS and Grant Shand on her partly successful interlocutory applications, in the sum of $4,500, either on a joint and several basis or apportioned.
[6] CRS opposes Mrs Pfisterer’s application and itself seeks a costs order against Mrs Pfisterer for $6,355.50 (plus disbursements), together with costs on its costs memorandum.
[7] Grant Shand accepts that there should be an order that it pay costs and disbursements on its unsuccessful application, but with the costs award reflecting a reduced time for preparation of submissions. In relation to Mrs Pfisterer’s partly successful application for orders against Grant Shand, Grant Shand submits that there should be no order as to costs and disbursements.
[8] In the interlocutory judgment, the various aspects of the applications were dealt with as numbered rulings. It is convenient to make reference to those in the discussion of costs.
Costs on Ruling 7
[9] The final ruling – Ruling 7 – was that by which Grant Shand’s application was dismissed in its entirety. It is appropriate, as Mr Darroch for Grant Shand concedes, that costs and disbursements follow the event. I accept Mr Darroch’s submission that the allowance for preparation of submissions should not be calculated on a full 2B basis, having regard to the fact that the issue involved was relatively discrete and limited, in the context of the hearing of a number of applications which took significantly longer on the single day hearing.2 Mr Darroch’s suggestion was that the allowance for preparation of written submissions (under item 24, sch 3, High Court Rules) be reduced by 50 per cent from the band B allocation of 1.5 days.
[10] On my assessment, the more appropriate approach is to allow item 24 on a 2A basis only (being 0.5 days).
[11]The appropriate calculation is set out in Schedule A to this judgment.
[12] This results in a costs award of $3,010.50 together with the undisputed disbursements of $298.40.
Costs on Rulings 1 to 6
[13]I turn to the costs of Mrs Pfisterer’s applications.
[14] By Ruling 1, the Court recognised that Mrs Pfisterer’s instructing solicitors had recently received a bundle of 329 additional documents which they should have the opportunity to review before determining whether further discovery is required in relation to their subject-matter. Somewhat similarly, by Ruling 2, the Court recognised that Grant Shand had recently provided time sheet records to the other parties. The Court ordered the filing of a supplementary affidavit in relation to those documents
2 High Court Rules, Category 2 under r 14.3(1) and band B under r 14.5(2).
and again reserved to Mrs Pfisterer the opportunity to review the documents before determining whether further discovery was necessary.
[15] Ruling 3 was against the making of an order in relation to documents describing the role of a particular manager.
[16] By Ruling 4, CRS was ordered to make additional discovery of documents evidencing the financial interests of identified individuals.
[17] Ruling 5 was against Mrs Pfisterer’s application for documents evidencing communication between the counterclaim defendant organisations in the light of certain judicial criticisms that had been made.
[18] Ruling 6 related to Mrs Pfisterer’s application for an order that interrogatories be answered. A ruling was made although in terms somewhat amended from those sought.
Counsels’ submissions
[19] For Mrs Pfisterer, Ms Flaszynski submitted that an appropriate total award of costs against both defendants would be $4,500, to reflect the fact that Mrs Pfisterer was “not wholly successful” on her application. The figure suggested by Ms Flaszynski represents a 41 per cent discount from a full 2B calculation.
[20] For CRS, Mr Barker QC submits that the overall balance of success realistically weighs strongly in favour of CRS. That submission is partly influenced by Mr Barker’s observation that Mrs Pfisterer’s application had not followed an informal request for further and better discovery (or for interrogatories). Mr Barker submitted that it was likely that Mrs Pfisterer would have been provided with the documents sought (and disclosed shortly after the application was made) without the need for an application. Against this background, Mr Barker observed that, once the documents disclosed in the meantime are left to one side, Mrs Pfisterer’s applications as dealt with at the hearing, were largely unsuccessful. In relation to the interrogatories, Mr Barker emphasised that CRS had not opposed interrogatories in
principle but rather had opposed the form of order, a position he submits was vindicated when the Court effectively re-wrote the proposed interrogatories.
[21] Turning to the quantum of costs, Mr Barker accepted the calculation of scale costs as submitted by Ms Flaszynski save for one item (item 25, preparation of bundle for hearing) having regard to the absence of the usual bundle. This calculation, which I accept is the appropriate 2B calculation, amounts to $6,355.50 as set out in Schedule B to this judgment.
[22] Mr Barker then submitted that there should be an order that Mrs Pfisterer pay to CRS that sum, namely $6,355.50. In addition, Mr Barker sought for CRS an additional allowance of 0.5 days for preparation of his four-page memorandum on costs.
[23] Mr Darroch’s submissions in relation to the costs of Mrs Pfisterer’s application were succinct. He accepted that orders had been made requiring further compliance by CRS and Grant Shand but observed that the orders were not in relation to all aspects and were of a more limited and refined nature than sought. On that basis he submitted that costs should lie where they fall on Mrs Pfisterer’s application.
Discussion – costs
[24] Counsel all recognise that the primary principle for consideration in this case is that the party who fails with respect to a proceeding or an interlocutory application should pay costs to the party who succeeds.3
[25] Mr Barker submitted correctly, by reference to C & S Kelly Properties Ltd v Earthquake Commission, that the courts recognise that determining which party succeeded on any application requires a realistic consideration of who won the primary contest of law and fact as well as the overall result.4
3 Rule 14.2(1)(a) High Court Rules.
4 C & S Kelly Properties Ltd v Earthquake Commission [2018] NZHC 56 at [26].
[26] Mr Barker placed emphasis upon the approach set out in the Court of Appeal’s judgment in Packing In Ltd (in liq) v Chilcott.5 In that case, the Court observed that, where in broad terms each party has had similar success, it is unhelpful to focus too closely on the question as to which party has failed and which has succeeded. The Court observed in the case before it that approximately equal success and failure attended the efforts of both sides.
[27] As indicated by the commentary in McGechan on Procedure, care is now required in the application of the dicta in Packing In Ltd.6 The Court of Appeal in its judgment in Weaver v Auckland Council emphasised that the starting point is that “success on more limited terms is still success”.7 The approach in Weaver reflects the fact that in any particular case it was open to the respondent (or defendant as the case may be) to consent to or at least not oppose the granting of the application in relation to the relief which the applicant successfully obtained. Through the respondent’s opposition, the application and some hearing time would be required.
[28] In this case, I am satisfied that Mrs Pfisterer’s success justifies an award of some costs. A realistic assessment, having regard to the aspects of application on which she was unsuccessful, is that a just award is approximately 50 per cent of scale. In my judgement, $3,175 represents a just award of costs.
[29] Having regard to the differing focus of some of the aspects of Mrs Pfisterer’s application, it would be inappropriate that the award of costs against the counterclaim defendants be joint and several. A just apportionment of liability is, as submitted by Mr Smith, two-thirds (CRS) and one-third (Grant Shand).
[30]Such an order will accordingly be made.
5 Packing In Ltd (in liq) v Chilcott (2003) 16 PRNZ 869 (CA) at [5] – [6].
6 McGechan on Procedure (online ed, Thomson Reuters) at [HR 14.2.01(1)(v)].
7 Weaver v Auckland Council [2017] NZCA 330, (2017) 24 PRNZ 379, at [26].
Discussion – disbursements
[31] As the incurred disbursements generally overlapped the two applications, it is convenient to consider most of the disbursements together.
[32] The stand-alone disbursements incurred by Mrs Pfisterer were her filing fee for her notice of opposition ($110) and her filing fee for her interlocutory application ($200). She is entitled to those.
[33] Mrs Pfisterer is also entitled to her reasonable disbursements incurred in relation to counsel’s travel and accommodation expenses (totalling ($596.80). As submitted by Ms Flaszynski, it is appropriate that those disbursements be apportioned equally between the two applications (that is $298.40 on each application).
[34] In turn, on Mrs Pfisterer’s application, it is appropriate that the $298.40 determined be apportioned equally between the counterclaim defendants (rather than in unequal proportions as for the costs).
[35]The orders to be made will incorporate those disbursements, being:
(a)on Grant Shand’s application, $408.40 ($298.40 plus $110.00); and
(b)on Mrs Pfisterer’s application, $498.40 ($298.40 plus $200) to be apportioned equally ($249.20).
Orders
[36]I order:
(a)The second counterclaim defendant shall pay to the counterclaim plaintiff the costs of the former’s application fixed in the sum of
$3,010.50, together with disbursements of $408.40;
(b)the first counterclaim defendant shall pay to the counterclaim plaintiff costs on account of the latter’s application fixed in the sum of
$2,116.67, together with disbursements of $249.20; and
(c)the second counterclaim defendant shall pay to the counterclaim plaintiff costs on account of the latter’s application fixed in the sum of
$1,058.33, together with disbursements of $249.20.
Osborne J
Solicitors:
GCA Lawyers, Christchurch
Canterbury Legal, Christchurch Darroch Forrest Lawyers, Wellington
Copy to:
M S Smith, Barrister, Wellington A R B Barker QC, Auckland
SCHEDULE A
A. Costs on a scale 2B basis Item Days 23. Filing opposition to interlocutory application 0.6 24. Preparation of written submissions 0.5 26. Appearance at hearing of defended application for sole or principal counsel 0.25 Total days 2.35 2B costs (@ $2,230/day) $3,010.50
SCHEDULE B
A. Costs on a scale 2B basis Item Days 22. Filing interlocutory application 0.6 24. Preparation of written submissions 1.5 26. Appearance at hearing of defended application for sole or principal counsel 0.75 Total days 2.85 2B costs (@ $2,230/day) $6,355.50
0
3
0