Roband v O'Sheas

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2013-419-000966

[2018] NZHC 1241

BETWEEN

JANINE MAREE ROBAND

Plaintiff

AND

O’SHEAS

First Defendant

MICHAEL CANN

Second Defendant

Hearing:

[On the Papers]

Appearances:

J M Roband (Self-represented Plaintiff) in Person

L J Taylor QC and R C Woods for the First Defendant M Cann (Self-represented Second Defendant) in Person D M O’Neill to Assist the Court

Judgment:

30 May 2018

JUDGMENT OF EDWARDS J

This judgment was delivered by Justice Edwards on 30 May 2018 at 4.30 pm, pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Counsel:     L J Taylor QC, Wellington

D M O’Neill, Hamilton

Solicitors:    Robertsons, Auckland

Copies To: J M Roband, Hamilton

M Cann, Hamilton

ROBAND v O’SHEAS [2018] NZHC 1241 [30 May 2018]

Introduction

[1]                  In my judgment dated 9 October 2017, I dismissed Ms Roband’s claims against O’Sheas in their entirety, and dismissed all but one of the claims against Mr Cann.1 The remaining claim was adjourned pending receipt of further evidence.

[2]O’Sheas and Mr Cann seek costs awards in their favour.

(a)O’Sheas seeks $516,089.24. That sum comprises schedule 2B costs, uplifted by 75 per cent from the commencement of the claim until 7 October 2016, and indemnity costs from 8 October 2016 until the end of the trial.

(b)Mr Cann represented himself at trial. He seeks $34,199 for his legal disbursements and expenses incurred in the preparation of his defence.

[3]                  Ms Roband is no longer legally represented and has not taken any further part in the proceeding.2 Given the quantum claimed by O’Sheas, and the comprehensive submissions filed in support, I appointed Mr O’Neill to assist the Court on the question of costs. I am grateful for that assistance which was provided by way of written submissions.

[4]The issues to be determined are as follows:

(a)Are the scale costs and disbursements claimed by O’Sheas appropriate?

(b)Should O’Sheas be awarded increased costs?

(c)Should O’Sheas be awarded indemnity costs?

(d)Should Mr Cann be awarded a sum for his legal disbursements and expenses?

1      Roband v OʼSheas [2017] NZHC 2468.

2      Ms Roband filed a short memorandum setting out her expenses in relation to the proceeding, with supporting invoices, which she asked the Court to take into account in fixing costs.

History of the proceeding

[5]                  Ms Roband, Mr Cann and Mr John O’Shea were once co-trustees of the McGerkinshaw Property  Trust.  O’Sheas  was  also  the  solicitor  to  that  Trust.  Ms Roband sued O’Sheas and Mr Cann in relation to a number of transactions which she said preferred the interests of others to those of the Trust. Those transactions concerned:

(a)the provision of an unlimited and interlocking guarantee in 2006 (2006 Guarantee);

(b)the application of the proceeds of sale from a property known as the Newstead property;

(c)the refinancing of debt in relation to another property known as the Alconbury property; and

(d)the  failure  to  enforce  lease  arrangements   in   accordance   with Ms…