Sharrock v Wedd - [2016] NZHC 3121

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CIV-2015-441-132 [2016] NZHC 3121

BETWEEN
GERALD ERRINGTON SHARROCK

First plaintiff

JUST STEEL FRAMING LIMITED Second plaintiff

AND

STEPHEN CHARLES WEDD Defendant

Judgment
(On the papers)

19 December 2016

JUDGMENT (NO. 3) OF ASSOCIATE JUDGE SMITH - (COSTS)

Introduction

[1] On 1 July 2016 I gave judgment on the plaintiff’s application for summary judgment against Mr Wedd.1 I made declarations relating to the directorship and shareholdings of the second plaintiff, Just Steel Framing Ltd (Just Steel), and I set aside a notice of discontinuance purportedly filed by Mr Wedd on behalf of the second plaintiff (Just Steel).

[2] The plaintiffs’ filed a memorandum on 18 July 2016 relating to costs. They seek costs on a 2B basis with an uplift of 50 per cent.

[3] Mr Wedd applied on 13 July 2016 for a recall of my 1 July 2016 judgment. The application for recall was opposed: on 20 July the plaintiffs filed a memorandum

1 Sharrock v Wedd [2016] NZHC 1477.

opposing the application, and seeking further costs on the recall application on a 2B

basis, again with an uplift of 50 per cent.

[4] On 5 August 2016 I declined to recall the judgment.2

[5] Mr Wedd filed a memorandum on costs on 21 September 2016. In the memorandum he referred to other litigation that is ongoing, and an outstanding complaint he has made to the Law Society relating to the first plaintiff. He requested that costs be reserved until the conclusion of these other matters.

[6] I now determine the plaintiffs’ application for costs.

The principles to be applied

[7] Rule 14.1 of the High Court Rules confers on the Court an overriding discretion as to the appropriate costs order. Rule 14.2 sets out general principles to be applied in determining 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:

(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.

2 Sharrock v Wedd (No 2) [2016] NZHC 1802.

[8] Rule 14.6 provides in relevant part:

14.6 Increased costs and indemnity costs

(1) Despite…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sharrock v Wedd

Details

AGLC: Sharrock v Wedd [2016] NZHC 3121
Case: [2016] NZHC 3121
Decision Date: 19 December 2016

CaseChat Overview and Summary

In the case of Sharrock v Wedd, the plaintiffs, Gerald Errington Sharrock and Just Steel Framing Limited, sought a declaration regarding the directorship and shareholdings of Just Steel Framing Limited, as well as the setting aside of a purported notice of discontinuance filed by the defendant, Stephen Charles Wedd. The High Court of New Zealand Napier Registry was tasked with deciding the legal issues surrounding the plaintiffs' application for costs and the defendant's application for recall of the earlier judgment.

The primary legal issues the court needed to address were whether the plaintiffs were entitled to costs on a 2B basis with an uplift of 50 per cent, and whether the defendant's application for recall of the earlier judgment had merit. The court considered the principles set out in the High Court Rules regarding costs and the circumstances in which increased costs may be awarded. It was noted that the plaintiffs were successful in obtaining declarations and setting aside the notice of discontinuance, and that the defendant's conduct had unnecessarily increased the plaintiffs' costs.

In its reasoning, the court found that the plaintiffs were entitled to costs on a 2B basis with an uplift of 20 per cent, plus disbursements, due to the defendant's unreasonable conduct in the proceedings. The court rejected the defendant's application for recall of the earlier judgment, finding it to be without merit and an attempt to revisit matters already determined. The court also noted that the defendant's conduct did not meet the high threshold for indemnity costs.

The final orders made by Associate Judge Smith were that the plaintiffs were entitled to costs on a 2B basis, increased by 20 per cent, plus disbursements, and that the defendant's application for recall of the earlier judgment was dismissed.

Orders