PNL Alliance Limited v Glenview Holiday Park Limited

[2021] NZHC 3241

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-974

[2021] NZHC 3241

BETWEEN

PNL ALLIANCE LIMITED

Applicant

AND

GLENVIEW HOLIDAY PARK LIMITED

Respondent

Hearing:

On the papers

Counsel:

KA Badcock for the Applicant

No memorandum for the Respondent

Judgment:

30 November 2021

COSTS JUDGMENT OF ASSOCIATE JUDGE SUSSOCK

This judgment was delivered by me on 30 November 2021 at 3pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors/Counsel:

Badcock Law, Rotorua

Gregory Simon Law, Auckland C Murphy, Barrister, Auckland

PNL ALLIANCE LTD v GLENVIEW HOLIDAY PARK LTD (costs) [2021] NZHC 3241 [30 November 2021]

Introduction

[1]    The applicant succeeded in its application that Caveat 12090209.1 over 22 Sloss Road, Tokoroa, not lapse. My preliminary view was that the applicant was entitled to costs. I asked the parties to confer and attempt to agree costs between themselves but file memoranda if agreement could not be reached. A timetable was directed for the filing of the memoranda.

[2]    Costs have not been able to be agreed and so a memorandum has been filed on behalf of the applicant. Costs are sought on a 2B basis of $11,352.50 together with disbursements of $1,107.48.

[3]    No memorandum has been filed in response by the respondent, Glenview Holiday Park Limited. Any memorandum on behalf of the respondent is now significantly outside the timetable directed. I therefore determine costs in the absence of any submissions from the respondent.

Discussion

[4]    The memorandum filed on behalf of the applicant includes a schedule setting out the items claimed from Schedule 3 of the High Court Rules 2016 together with individual disbursements.

[5]    The items claimed appear uncontroversial, except for item 41, the preparation of the bundle, as the bundle of documents was prepared by the respondent. Counsel for the applicant recognises in the memorandum filed that this item may be disputed by the respondent but submits that it is appropriately claimed because the respondent prepared the bundle of documents voluntarily, the applicant prepared a bundle of authorities and a bundle of documents was not necessary in the circumstances of this case given the small number of documents for inclusion.

[6]    Item 41 of Schedule 3 is described as “Preparation by applicant of bundle for hearing” and allows for 0.6 of a day. There is no reference to whether it is the bundle of documents or authorities. Ordinarily, the applicant prepares a bundle of documents

and bundle of authorities with the respondent providing copies of any additional authorities.

[7]    In the circumstances I consider that is it appropriate for half of this item to be awarded to the applicant, as the bundle of documents and bundle of authorities are a similar size. The applicant has therefore completed half of the task that item 41 allows for. The fact that the respondent prepared the bundle of documents voluntarily does not detract from the fact that the bundle of documents was still prepared by the respondent.

[8]    I therefore reduce the costs claimed by 0.3 of a day so that the total time allocation is 4.45 days at a daily rate of $2,390 for a total of $10,635.50.

[9]    The disbursements claimed of $1,107.48 appear appropriate, with copies of the invoices for the disbursements attached to the costs memorandum. The claiming of mileage and accommodation in Auckland for the hearing is justified where the applicant is based in Tokoroa and the caveat was lodged against a property there.

Result

[10]   For the reasons set out above, I award costs to the applicant, PNL Alliance Limited, of $10,635.50 plus disbursements of $1,107.48 for a total payable by the respondent, Glenview Holiday Park Limited, of $11,742.98.

Associate Judge Sussock