Reid v Castleton-Reid

[2016] NZHC 2197

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-003009 [2016] NZHC 2197

BETWEEN

ROSS RONAYNE REID

Plaintiff

AND

BARRY ROSS LAURENCE CASTLETON-REID Defendant

Hearing:	19 and 21 July 2016 (on papers)
Appearances:	Ms S Abdale for Plaintiff Ms Matthew for Defendant (on papers )
Judgment:	16 September 2016

JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE [Recall of Costs decision]

This judgment was delivered by me on

16.09.16 at 3.30 pm, pursuant to

Rule 11.5  of the High Court Rules.

Registrar/Deputy Registrar

Date……………

REID v CASTLETON-REID [2016] NZHC 2197 [16 September 2016]

[1]      Judgment was issued  in  this matter on  18 July 2016 and  as  part of the judgment an order was made for costs against the defendant.

[2]      On 18 July 2016, I delivered a decision declining the defendant’s application

for legal aid.  Materially, I determined:

[77]     If  the  foregoing  reasoning  is  correct,  it  follows  that  making  a security for costs order would be justified.  Therefore the circumstance of Emslie Reid expressing willingness to meet the costs of the litigation in the informal way that he has does not provide the plaintiff with a ground for opposing an order for security for costs.

[78]      However, given the outcome of the argument regarding the effect of s 45 of the [Legal Services Act 2011], the court is required to decline the application for security for costs on other grounds.

…

[87]     If it were otherwise appropriate to consider making an order for security for costs, my conclusion would have been that the claim which the plaintiff brings is not so weak that the court ought to make an order for security to protect the defendants from unjustified litigation.

Costs

[88]      Notwithstanding the careful submissions which Ms Matthews made in this complex area, the defendant has failed in its application for an order for security for costs.  In my view, costs ought to follow the event. An award of costs under category 2B is justified and there will be an order accordingly, together with a direction that disbursements as fixed by the Registrar are to be payable as well.

[3]      The defendant has now filed a memorandum requesting that the decision to award costs against him be reversed and revised on the basis that the original order should not have been made and, further, that there are “special reasons” why costs should not follow the event in the usual way.1  The defendants counsel submits:

3.For the reasons set out above, the defendant seeks a direction that the costs decision at paragraph 88 of the 18 June 2016 decision of Associate Judge Doogue be revised and replaced with a decision:

3.1      Allowing costs to lie where they fall; or

3.2      Requiring the plaintiff to pay the defendant’s costs to 16

June 2016, either on a solicitor-client basis as sought by the

1      See High Court Rules, r 14.8(1).

defendant, or on a 2B basis, and requiring the defendant to

pay the plaintiff’s costs thereafter on a 2B basis.

[4]      In summary, the defendant submits that he filed and prepared the application for security for costs on the basis that the plaintiff had not applied for, nor had he been  granted,  legal  aid  in  respect  of  the  proceedings.    On  13  June  2016,  the defendant was informed that the plaintiff had applied for legal aid and on 16 June

2016, the defendant was informed that legal aid had been granted.  The defendant’s

bundle and submissions were due on 17 June 2016.  The defendant argues that by 16

June 2016, he had already incurred significant costs in preparing the application for security.  He submits that the plaintiff should only be entitled to costs in respect of steps taken after the defendant was notified about the grant of legal aid.

[5]      In reply, the plaintiff submits that he was not required to inform the defendant that he had applied for legal aid in relation to the proceedings.  However, following an email request from counsel for the defendant on 9 June 2016, counsel for the plaintiff chose to inform the defendant of the application for legal aid.  Counsel also informed the defendant when the application for legal aid was granted on 16 June

2016, more than two weeks prior to the hearing.   The plaintiff submits that once informed of the plaintiff’s legally aided status, the defendant should have withdrawn his  application  for  security.    By doing  so,  the  parties  would  have  been  spared significant time and expense.

[6]      I agree with the plaintiff’s submissions on this issue.  Furthermore, however, the defendant’s application appears to be based on the misconceived assumption that, but for the grant of legal aid, the defendant’s application would have been successful. This is contrary to [87] of my judgment, as set out above.  In fact, it is highly likely that  the  defendant  would  have  been  unsuccessful,  irrespective  of  the  plaintiff’s legally aided status.

[7]      On that basis, the defendant’s application is declined.

J.P. Doogue

Associate Judge