Rimmer v Wilton

[2023] NZHC 2218

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-001430

[2023] NZHC 2218

IN THE MATTER OF

the estate of DAVID ROBERT RIMMER

BETWEEN

NIGEL DAVID RIMMER and NICOLA RIMMER

Plaintiffs

AND

CAROLYN MARY WILTON

Defendant

On the papers
Counsel:	L S B Acland or plaintiffs S P H Elliott for defendant
Judgment:	16 August 2023

JUDGMENT OF VAN BOHEMEN J

[on costs]

This judgment was delivered by me on 16 August 2023 at 4:30 pm pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

……………………………..

Counsel/Solicitors:

Rout Milner Fitchett, Nelson S P H Elliott, Auckland

Insight Legal Limited, Warkworth

RIMMER v WILTON (costs) [2023] NZHC 2218 [16 August 2023]

[1]                 In a judgment dated 1 June 2023, I dismissed the application by the plaintiffs, Nigel and Nicola Rimmer, for orders challenging the exercise by the defendant, Carolyn Wilton, of her powers as administrator of the estate of David Robert Rimmer, who died in Auckland on 18 March 2016 without leaving a will.1 I held that, as the successful party, the defendant was entitled to costs on a 2B basis. I directed counsel to try to agree on costs but gave leave to file memoranda if they were unable to agree.

[2]                 Although counsel have agreed on most elements of the defendant’s claim to costs, they have been unable to agree on one issue.

[3]                 The disagreement concerns whether the defendant’s costs should be claimed on the basis that the proceeding was a witness hearing or an affidavit hearing.

[4]                 The defendant seeks costs of $17,805.50, calculated on the basis that she is entitled, under sch 3 of the High Court Rules 2016, to recover costs for two days each for preparation under step 30 (preparation of affidavits, list of issues or authorities; and agreeing common bundle) and step 32 (preparation for hearing).

[5]                 The plaintiffs resist this claim and say that the defendant is entitled to recover costs only for one day each for step 33 (preparation of briefs, list of issues, authorities and agreeing common bundle) and 33B (preparation for hearing) as set out under  sch 3. On that basis, the plaintiffs say the defendant is entitled to costs of $13,025.50.

[6]                 Counsel for the  plaintiffs  point  out  that  the  hearing  itself  lasted  some  45 minutes and submit that four days preparation for a hearing of that duration is not reasonable.

[7]                 Counsel for the defendant has not made specific submissions on the point of contention.

1      Rimmer v Wilton [2023] NZHC 1372.

The basis of the dispute

[8]                 In pre-trial directions made by Associate Judge Gardiner on 17 November 2022, it was assumed, on the basis of a joint memorandum filed by counsel for the parties, that the proceeding would be a witness hearing, with briefs of evidence prepared and filed before the hearing.2

[9]                 In the event, the parties agreed on the material facts and evidence and no briefs of evidence or affidavits were filed.

[10]             Even so, the defendant seeks 2B costs under steps 30 and 32 for preparation of affidavits, list of issues, authorities and agreeing the common bundle and for preparation for the hearing. The significance of claiming under those steps is that, for band B hearings, two days may be claimed for each step. By contrast, sch 3 provides only for one day for each of steps 33 and 33B under band B .

Principles relating to costs

[11]             The principles applying to the determination of costs are  set  out  in  the High Court Rules. Rule 14.2 relevantly provides:

14.2     Principles applying to determination of costs

(1)The following general principles apply to the determination of costs:

(a)   the party who fails with respect to a proceeding or an interlocutory application should pay costs to the party who succeeds:

(b)   an award of costs should reflect the complexity and significance of the proceeding:

(c)   costs should be assessed by applying the appropriate daily recovery rate to the time considered reasonable for each step reasonably required in relation to the proceeding or interlocutory application:

(d)   an appropriate daily recovery rate should normally be two-thirds of the daily rate considered reasonable in relation to the proceeding or interlocutory application:

2      Rimmer v Wilton HC Auckland CIV-2022-404-001430, 17 November 2022 (Minute of Associate Judge Gardiner).

(e)   what is an appropriate daily recovery rate and what is a reasonable time should not depend on the skill or experience of the solicitor or counsel involved or on the time actually spent by the solicitor or counsel involved or on the costs actually incurred by the party claiming costs:

(f)   an award of costs should not exceed the costs incurred by the party claiming costs:

(g)   so far as possible the determination of costs should be predictable and expeditious.

…

[12]             While the Court retains a discretion as to costs, that discretion should normally be exercised in accordance with the principles set out in the Rules.3

Analysis

[13]             Under r 14.2(1)(c), costs should be assessed based on “the time considered reasonable for each step reasonably required in relation to the proceeding”.

[14]             On the basis of the information before me, I agree that the plaintiffs are correct and that steps 33 and 33B rather than steps 30 and 32 apply to the hearing and that costs only in relation to those steps are claimable.

[15]I reach that conclusion for the following reasons.

[16]             First, the proceeding was envisaged by the parties as a witness hearing, as Associate Judge Gardiner’s minute of 17 November 2022 made plain. While no witnesses or preparation of witnesses was required, and although the hearing lasted less than an hour, it is reasonable to allow recovery, in accordance with the Rules, for the parties’ preparation for the hearing on the basis that had been agreed – that it was to be a witness hearing.

[17]             Secondly, it is not reasonable to use the absence of witnesses as an excuse to claim costs on the basis of affidavit preparation when no affidavits were filed. Step 30 of sch 3 explicitly sets out “preparation of affidavits” as part of its content.

3      Mansfield Drycleaners Ltd v Quinny’s Drycleaning (Dentice Drycleaning Upper Hutt) Ltd (2002) 16 PRNZ 662 at [27].

[18]             Thirdly, at the hearing, the only question at issue was one of law – whether the defendant, in exercising Option B under s 61 of the Property (Relationships) Act 1976, was entitled to take the benefit of a relationship property agreement under s 21 of that Act between her and her late partner, as it applied to a property owned by them as co- equal tenants in common. The submissions of counsel focused on this narrow legal issue.

[19]             For all those reasons, I agree with the plaintiffs that the defendant is entitled only to costs in relation to steps 33 and 33B as set out in sch 3.

[20]             On the basis that this was the only dispute between the parties over costs, it follows that the defendant is entitled to an award of costs in the amount of $13,025.50.

G J van Bohemen J