Prestige Building Removals Limited v Vogel

[2023] NZHC 2445

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-419-000209

[2023] NZHC 2445

BETWEEN

PRESTIGE BUILDING REMOVALS LIMITED
Applicant

AND

SHELLEY LYNN VOGEL and BRET VOGEL

Respondents

Hearing:

On the papers

Counsel:

T R Thoms for Applicant

A C N Fuiava for Respondent

Judgment:

4 September 2023

JUDGMENT OF ANDREW J

[Costs]

This judgment was delivered by Justice Andrew on 4 September 2023 at 11.00 am

pursuant to r 11.5 of the High Court Rules 2016 Registrar / Deputy Registrar Date…………………………..

PRESTIGE BUILDING REMOVALS LTD v VOGEL [2023] NZHC 2445 [4 September 2023]

Introduction

[1]        This judgment contains my decision on costs in respect of both the application to this Court for leave to appeal an arbitral award and my subsequent decision refusing leave to appeal my own decision to the Court of Appeal.¹

Decision

[2]        I accept that costs should be awarded to the successful party, namely the respondents, in respect of my first decision of 1 March 2023. I agree with the calculation of 2B costs by counsel for the respondent at [4] of her memorandum of 15 March 2023.

[3]        I order, in respect of the of the 1 March 2023 decision, that the applicant is to pay costs to the respondents in the sum of $9,003.24. Those are the actual costs incurred by the respondents and are less than the 2B scale costs that were calculated. As is well known, costs cannot be awarded in excess of actual costs (High Court Rules 2016, r 14.2(1)(f)).

[4]        In respect of the 12 July 2023 decision (leave to appeal to the Court of Appeal), I again find that costs should be paid by the applicant, Prestige Building Removals Ltd, to the successful party, namely the respondent. Costs in respect of the July decision are to be paid on a 2A basis, with allowance being made for the following items: item 53 (commencement of response to appeal) (0.3 days), item 56 (preparation of written submissions) (1 day) and item 11 (filing costs memorandum) (0.2 days). That gives a total award of costs for the leave to appeal to the Court of Appeal decision (July 2023) of $3,585.

[5]        I note that the application for leave to appeal to the Court of Appeal was dealt with on the papers and the legal issues were substantially similar to those addressed in the original decision I made refusing leave to appeal to this Court against the arbitral award.

[6]        In respect of both proceedings, I order that the applicant is to pay the respondents disbursements as set out in the respondent’s memoranda.

Andrew J

1      Prestige Building Removals Ltd v Vogel [2023] NZHC 359; and Prestige Building Removals Ltd v Vogel [2023] NZHC 1815.