SCOTT KERRY JACKSON and SARAH ANNE JACKSON s AND GEOFFREY CLEMMENT SMALL and ARIA SMALL s BOMBAY INVESTMENTS LIMITED

[2024] NZHC 3085

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-000864

[2024] NZHC 3085

UNDER

the Declaratory Judgments Act 1908 and Part 18 of the High Court Rules 2016

IN THE MATTER

of an application for a Declaratory Judgment

BETWEEN

SCOTT KERRY JACKSON and SARAH ANNE JACKSON

Plaintiffs

AND

GEOFFREY CLEMMENT SMALL and ARIA SMALL

First Defendants

BOMBAY INVESTMENTS LIMITED

Second Defendant

Hearing:

On the papers

Counsel:

T Allan for the Plaintiffs

A Simkiss for the Defendants

Judgment:

23 October 2024

JUDGMENT OF GORDON J

[As to costs]

This judgment was delivered by me

on 23 October 2024 at 12 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors:

Grove Darlow & Partners, Auckland Minter Ellison Rudd Watts, Auckland

JACKSON v SMALL [2024] NZHC 3085 [23 October 2024]

[1]                 On 5 March 2024, the plaintiffs, Scott and Sarah Jackson (the Jacksons), made an interlocutory application seeking enforcement orders against the first defendants, Geoffrey and Aria Small (the Smalls), and a direction from the Executive Judge that the proceeding be allocated to a single judge.

[2]                I was assigned the proceeding and on 20 August 2024, I made enforcement orders largely in favour of the Jacksons (the judgment).1

[3]                In the judgment, I said that  “I  intend  to  award  scale  costs  in  favour of the Jacksons” and directed that counsel file a joint memorandum on scale costs.2 Counsel have not been able to agree on some items and instead of a joint memorandum they filed separate memoranda.

[4]                The Jacksons seek $10,994 of costs and $1,146 of disbursements as set out in the annexed schedule at Appendix A. The Smalls do not take issue with the costs sought, with the exception of two items of costs and one item of disbursements.

The disputed areas of costs

Memorandum of counsel dated 5 March 2024

[5]                Mr Allan, counsel for the Jacksons, claims $2,390 (one-day allocation calculated at a 2C categorisation) for preparing a memorandum of counsel accompanying the application. He submits that this memorandum was necessarily substantial, requiring 25.8 hours of actual time, for the following reasons:

(a)given the proceeding could have been assigned to any Judge, the memorandum needed to explain the lengthy and complex procedural background to the proceeding;

(b)an application by the plaintiffs for enforcement orders was only made necessary by the Smalls’ “sanguine approach” in not proactively seeking to comply with or clarify previous orders made by Duffy J;

1      Jackson v Small [2024] NZHC 2328.

2      At [104]–[105] (counsel made submissions on costs at the hearing).

(c)to explain a ‘lacuna’ in the orders made by Duffy J; and

(d)to explain three issues (one new and two disputed issues) in relation to the orders made by Duffy J.

[6]                Alternatively, Mr Allan relies on r 14.6(3)(a) of the High Court Rules 2016 which provides that the court may order a party to pay increased costs if the nature of the proceeding or step required substantially more time on the part of counsel than provided for under band C.

[7]                Ms Simkiss, counsel for the Smalls, submits that the memorandum of counsel accompanying the application was not a necessary step and the costs claimed are unreasonable for the following reasons:

(a)the memorandum was unnecessarily lengthy (32 pages) for the purpose of asking the Court to allocate this proceeding to one judge and in preparation for a case management hearing (which was itself unnecessary);

(b)the Jacksons did not take any steps to seek agreement on directions before filing, whereas steps have routinely been agreed in this matter; and

(c)the matters of submission raised in the memorandum were repeated in a later memorandum of submissions, and the Jacksons ought not be able to double claim.

Sealing of Duffy J’s orders

[8]                Mr Allan claims costs for sealing of orders made by Duffy J. He submits that those orders were the foundation of this Court’s subsequent orders and the earlier orders need to be sealed. Mr Allan further notes that the Smalls had criticised the Jacksons for not sealing Duffy J’s orders, and are now asserting that sealing is unnecessary.

[9]                Ms Simkiss submits that it was not necessary to seal Duffy J’s orders, given they are captured by and superseded by the orders made in the judgment.

Disputed disbursements

Photocopying

[10]            Mr Allan submits that the Jacksons’ photocopying disbursements of $496 are entirely reasonable and justified. The fees are made up as follows:

(a)$207 for printing a physical copy of the trial bundle for the Court;

(b)$212.20 for printing a physical copy of the trial bundle to serve on the Jacksons, at the Jacksons’ solicitors’ request; and

(c)$76.80 of general photocopying charges.

[11]            Ms Simkiss refers to the High Court Rules which provides that the disbursement must be “specific to the conduct of the proceeding” and “reasonably necessary for the conduct of the proceeding”.3 She abides by the Court’s decision as to whether those criteria are met. Ms Simkiss also submits that the Court should take into account that the Jacksons did not consult on the contents of the trial bundle resulting in the bundle being incomplete, which then required the Smalls to prepare a supplementary bundle containing the missing key evidence.

Discussion

[12]            I accept it was necessary for Mr Allan to provide a comprehensive memorandum accompanying the Jackson’s application, for submission to the Executive Judge in support of the request for both urgency and for the proceeding to be assigned to a single judge.

[13]            The demands on the Court’s resources are such that any request for urgency requires a proper basis. That includes but is not limited to counsel’s position regarding

3      High Court Rules 2016, r 14.12(2)(b)–(c).

any delays to that date. Similarly, any request for a single judge to be allocated to the proceeding needed to be supported by an explanation of the history of the file going back to 2018 when the proceedings first commenced. The memorandum explained both the lengthy history and delays involved. Accordingly, I approve the claim for

$2,390 for the preparation of the memorandum (one day calculated on a 2C basis).

[14]            As to the sealing of the orders made by Duffy J, for the reasons advanced by Mr Allan and in particular that those orders were the foundation for this Court’s subsequent orders, they need to be sealed. The standard cost of $478 as claimed is approved.

[15]            Finally, in relation to disbursements, in particular the photocopying, I accept that the disbursement was specific to the conduct of the proceeding and reasonably necessary for the conduct of the proceeding. I do not consider the fact that the Smalls added a supplementary bundle detracts from that finding. It is not uncommon for an opposing party to add further documents after the main bundle is prepared.

[16]            I approve the photocopying expenses as claimed and the filing and hearing fees as claimed.

Order

[17]            I make an order that the first defendants, Geoffrey and Aria Small, pay to the plaintiffs, Scott and Sarah Jackson, costs in the sum of $10,994 and disbursements in the sum of $1,146. The total of costs and disbursements awarded is $12,140.

Gordon J

Appendix A