Plumpton v Terry
[2020] NZHC 1205
•3 June 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV 2015-404-000562
[2020] NZHC 1205
BETWEEN KEVIN IAN PLUMPTON
First Plaintiff
AND
UCFX LIMITED
Second Defendant
AND
JAMES TERRY
First Defendant
AND
BRENT DAVID COLBERT
Second Defendant
AND
SCOTT MAYNARD
Third Defendant
Hearing: On the papers Appearances:
B P Henry & A R Kenwright for the Plaintiffs T J P Bowler for the Defendants
Judgment:
3 June 2020
JUDGMENT OF VAN BOHEMEN J
[Costs]
This judgment was delivered by me on 03 June 2020 at 3.00pm Pursuant to Rule 11.5 of the High Court Rules
…………………………
Registrar/Deputy Registrar
Solicitors/Counsel:
B P Henry, Barrister, Auckland Shanahans Law Limited Neilsons Lawyers, Auckland
PLUMPTON v TERRY [COSTS] [2020] NZHC 1205 [3 June 2020]
Introduction
[1] On 19 December 2019, I delivered a judgment in these proceedings in favour of the plaintiffs, Mr Plumpton and his company UCFX Ltd, and ordered the defendants, Mr Terry, Mr Colbert and Mr Maynard to pay $681,212 in damages to UCFX.1 I also directed that the parties may file submissions as to costs.
[2] On 21 February 2020 the plaintiffs, through their counsel, filed a memorandum seeking costs on a 2B basis of $122,129 plus disbursements of $144,730.51.
[3] On 20 March 2020, counsel for the defendants filed a memorandum advising that the parties were in discussions with a view to reaching a global settlement on costs, and requesting a 14-day time extension to file a substantive costs memorandum in reply.
[4] By minute dated 29 April 2020 I noted that because of delays caused by the Covid-19 emergency, the memoranda of 21 February 2020 and 20 March 2020 had not been brought to my attention until the final week of April. I sought an update on whether a costs determination was required from the Court. I also directed that if the defendants wished to file a response to the plaintiffs’ memorandum of 21 February 2020, they could do so by 13 May 2020.
[5] On 13 May 2020, counsel for the plaintiffs filed a further memorandum advising the Court that while parties had been in settlement negotiations as to costs, they had been unable to resolve matters and the determination of the Court was required.
[6] On 14 May 2020, counsel for the defendants filed a memorandum seeking a further extension of two weeks to enable the parties to meet face to face to further negotiations, which counsel said had not been possible because of the Covid-19 lockdown.
1 Plumpton v Terry [2019] NZHC 3450.
[7] By minute dated 19 May 2020, I noted that I did not accept that the Covid-19 lockdown precluded the defendants from undertaking discussions with the plaintiffs just because face to face meetings could not take place. However, I said I would delay issuing my judgment on costs until after 28 May 2020 to give the parties an opportunity to reach a settlement. I also recorded that I would issue my judgment after that date unless requested otherwise by both sets of parties.
[8]As at 3 June 2020, I have received no further communication from the parties.
[9] I now make my decision on the plaintiffs’ application for costs, to which the defendants have not made a substantive response.
Discussion
[10] While costs remain at the discretion of the Court,2 in line with first principles of costs,3 the defendants are liable to pay a reasonable contribution to the costs incurred by the plaintiffs as the plaintiffs were clearly the successful parties.4
[11]I agree that the plaintiffs are entitled to costs on a 2B basis.
[12] I also accept the calculations of costs in the index to the memorandum of 21 February 2020 of counsel for the plaintiffs, except with respect to the calculation of hearing days.
[13] Counsel have calculated costs on the basis of 17 hearing days. While the hearing time exceeded the scheduled 15-day hearing period, the Registry’s records show that the additional hearing time was two half-days, not two full days. Therefore, for the purposes of Schedule 3 of the High Court Rules 2016, the correct total number of hearing days is 16.
[14]With this adjustment, the plaintiffs are entitled to costs of $113,764.
2 High Court Rules 2016, r 14.1.
3 Rule 14.2.
4 Rule 14.2(a).
[15] Counsel for the plaintiffs have calculated disbursements at $144,780.51. This includes the sum of $54,400 for hearing fees, based on a hearing of 17 days, or 34 half-days.
[16] The Registry’s records show that the plaintiffs were invoiced for hearing fees of $46,400 based on the original hearing estimate of 15 days. The records also show that the plaintiffs paid this amount on 8 August 2018.
[17] Even though the hearing extended a further two half days, no further hearing fees have been invoiced and the Registry do not seek reimbursement for the additional hearing time. It follows that no additional costs in respect of hearing time can be recovered from the defendants and the plaintiffs’ claim for disbursements should be adjusted accordingly; i.e. reduced by $8,000.
[18]With this adjustment, the plaintiffs are entitled to disbursements of
$136,780.50.
Order
[19]I order that the plaintiffs pay the defendants costs of $113,764.00 and disbursements of $136,780.50.
G J van Bohemen J
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