Popata v Rangi HC Auckland CIV 2006-404-006406

[2008] NZHC 2528

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2006-404-006406

BETWEEN  KIMETHA LEE POPATA PREVIOUSLY ROBERT POPATA

Plaintiff

ANDANNE RANGI Defendant

Appearances: Plaintiff in person

J G Robertson for defendant

Judgment:      26 August 2008  at 3:00pm

COST JUDGMENT OF ASSOCIATE JUDGE ABBOTT

This judgment was delivered by me on 26 August 2008 at 3:00pm pursuant to Rule 540(4) of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

K L Popata, 2 Law Place, Alexandra Hills, Brisbane QLD 4161, Australia

J G Robinson, PO Box 295, Ostend, Waiheke Island

POPATA V  RANGI HC AK CIV 2006-404-006406 26 August 2008

[1]      On 30 January 2008  I made  an  order  dismissing this  proceeding on  the grounds that there was no good reason to keep it alive following a settlement reached at a judicial settlement conference before me on 22 May 2007.  The defendant now seeks costs.

Background

[2]      The proceeding had come back before me pursuant to a direction made at the conclusion of the judicial settlement conference.  The settlement required sale of the property which was the subject of the original dispute.  Leave was reserved to either party to seek further directions to implement the settlement, and the proceeding was listed for review in the Chambers List on 17 December 2007 in the event that notice of discontinuance had not been filed by that time.  I set out the basis of the leave reserved in my minute of the conference:

[4]       The settlement is in full and final settlement of the disputes between the parties.     Their rights from this point  forward  will arise out of the settlement agreement.    As there are still further steps to take to implement the settlement, and at the request of both parties, the proceeding will remain in place at least until such time as an agreement for sale and purchase of the property has been signed.    I reserve to either party to seek further directions in respect of implementing the settlement, should any difficulties emerge.

[3]      Before the proceeding came back for review in December 2007 it had been back before the Court on an application by the defendant for further directions.  That application was called in the Duty Judge list on 5 November 2007.  Shortly before that hearing the plaintiff (who is the executor of the estate of the original plaintiff) gave notice she had dispensed with the services of the solicitors who had represented her at the judicial settlement conference, and would be acting in person from that point.  Counsel who appeared for the plaintiff at the judicial settlement conference on 22 May 2007 appeared at the hearing and was granted leave to withdraw.  The Duty Judge declined to make directions, taking the view that it was for the defendant to institute separate proceedings to enforce the settlement, if that was her wish.

[4]      There were no appearances at the review hearing on 17 December 2007.   I

dealt with the matter as follows:

[3]      The issue for me is whether there is any need to keep this proceeding alive.  I adjourn the matter to the Chambers List at 2.15pm on 30 January

2008.   The proceeding will be struck out at that point on the basis of the

concluded settlement unless either party files a memorandum beforehand setting out good reason for keeping this proceeding on foot.

[5]      On 23 January 2008 the plaintiff filed an application to rescind or set aside the settlement agreement.  She relied on a number of grounds which she had either raised, or could have raised, at the judicial settlement conference.  She did not appear at the Chambers List hearing on 30 January 2008.  Counsel for the defendant asked for the proceeding to be struck out.   He advised the Court that the defendant was addressing enforcement of the settlement agreement in a new proceeding (as suggested by the Duty Judge on 5 November 2007).  He sought costs on behalf of the defendant, who was legally aided.  Directions were given for the parties to file memoranda as to costs.

The application for costs

[6]      The  defendant  seeks  costs  for  work  undertaken  by  her  counsel  in  this proceeding  subsequent  to  the  judicial  settlement  conference  (accepting  that  any claim for costs prior to that was settled at the conference).  The work (set out in a schedule to her counsel’s memorandum) comprises:

a)        preparation of the application for directions and appearance at the hearing on 5 November 2007, and

b)        filing of a memorandum for the Chambers List hearing on 30 January

2008, preparation of submissions, and appearance at the hearing and presenting those submissions.

[7]      Costs on a 2B basis for these steps amount to $3,360.00.   However, the defendant accepts that a reduction is appropriate (under r 47(f) of the High Court Rules) on the basis that the defendant’s total legal aid costs for the period were

$4,660.00, but that included costs incurred in commencing the proceeding to enforce the  settlement  agreement.    Counsel  advises  that  $2,060.00  of  the  actual  costs incurred can be attributed to the later proceeding.

[8]      The plaintiff has filed a memorandum submitting that all, or at least part, of the defendant’s costs should be borne by the defendant.   She suggests that the defendant failed to provide documentary evidence to support her allegation in this proceeding that she was in a defacto relationship with the original plaintiff, including evidence as to what the defendant told Government agencies from whom she was receiving financial support.  The plaintiff contends that either the defendant should be denied costs because of this alleged lack of co-operation and failure to make proper disclosure, or that any award should be deferred until the later proceeding has been determined.

[9]      The matters raised by the plaintiff were raised in the course of the judicial settlement conference.   The plaintiff is now wishing to revisit issues which she agreed to settle.  The costs which the defendant claims have been incurred solely as a consequence of the plaintiff’s decision to resile from that settlement, reached in this Court at a time that she was represented by experienced counsel.   Although the defendant did not obtain the directions she was seeking in the application which came before the Court in November 2007, she nevertheless obtained guidance from the Court on the path she needed to pursue.   She would not have felt the need to make that application if the plaintiff had performed the agreement.  There can be no doubt that the defendant was successful in relation to the matters before the Court on

30 January 2008 (including the plaintiff’s application).

[10]     I make an order that the plaintiff pay costs to the defendant on a 2B basis in respect of the steps set out in the schedule to the memorandum for the defendant dated 12 February 2008, but reduced by the sum of $760.00 (pursuant to r 47(f) of

the High Court Rules) to accord with actual costs incurred.

Associate Judge Abbott