Siemer v Heron - [2013] NZHC 2146

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-6587 [2013] NZHC 2146

BETWEEN
VINCENT ROSS SIEMER

Plaintiff

AND

MICHAEL RICHARD HERON

First Defendant

MICHAEL PETER STIASSNY
Second Defendant

RUSSELL MCVEAGH SOLICITORS
Third Defendant

SIONE TANAKI
Fourth Defendant

PIO SAMI
Fifth Defendant

Hearing:	On the Papers
Judgment:	22 August 2013

COSTS JUDGMENT OF ASSOCIATE JUDGE SARGISSON

This judgment was delivered by me on Thursday 22 August 2013 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date:………………………….

Counsel/Solicitors:
T Clarke, Bell Gully, Auckland
D Salmon, Lee Salmon Long, Auckland D Nilsson, Lee Salmon Long, Auckland

Copy to: The Plaintiff

SIEMER v HERON & ORS[2013] NZHC 2146 [22 August 2013]

[1] On 28 June 2013 I issued my judgment striking out Mr Siemer’s statement of claim.1

[2] This judgment deals with the remaining issues as to costs. [3] Memoranda have been filed by:
(a)Counsel for the second defendant seeking 2B costs plus disbursements of $742.25.

(b)Counsel for the first and third defendants seeking 2B costs plus disbursements of $643.43.

(c)Mr Siemer, who seeks 2B costs plus disbursements for travel, parking and copying of $88.00.

[4] Under the statutory costs regime the presumption is that costs follow the event. High Court Rule 14.2(a) provides that the party who fails with respect to an interlocutory application should pay costs to the party who succeeds. Costs are, however, in the overall discretion of the Court2 and the Court may refuse to make an order for costs or may reduce the costs otherwise payable under the Rules if, although the party claiming costs has succeeded overall, that party has failed in
relation to an issue which significantly increased the costs of the party opposing costs.3 Relevantly the Court may also refuse to make an order or reduce costs otherwise payable if another reason exists to justify refusal or reduction.

[5] There is nothing exceptional in the applications of those defendants who seek costs. They can properly claim to have succeeded overall and are prima facie entitled to costs for the steps they have claimed. They properly identify:

1       Siemer v Heron [2013] NZHC 1604.
2       See r 14.1.
3       See r 14.7(d).

(a)The proceeding as a Category 2 proceeding under r 14.3. It is a proceeding of average complexity requiring counsel of skill and experience considered average in the High Court;

(b)That for the purpose of r 14.5 a normal amount of time is reasonable time for the allowable steps set out in Schedule 3 to the Rules for which they claim costs. Band B therefore applies for the purpose of assessing the time allowance for each of those steps.

[6] On this basis, the defendants seeking costs have a prima facie entitlement to the awards they seek.

[7] Turning to Mr Siemer’s costs application I find that there is no basis to make an award in his favour essentially for two reasons.

[8] First, though Mr Siemer relies on my order dismissing the first and third defendant’s application…

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 Siemer v Heron

Details

AGLC: Siemer v Heron [2013] NZHC 2146
Case: [2013] NZHC 2146
Decision Date: 22 August 2013

CaseChat Overview and Summary

In the case of Siemer v Heron, the plaintiff, Vincent Ross Siemer, filed a claim against multiple defendants, including Michael Richard Heron, Michael Peter Stiassny, Russell McVeagh Solicitors, Sione Tanaka, and Pio Sami. The plaintiff sought various remedies, but the court had previously struck out his statement of claim. The present judgment addresses the issue of costs incurred during the litigation process. The second, first, and third defendants applied for costs under the statutory costs regime, while the plaintiff also sought costs for travel, parking, and copying expenses. The court considered the statutory presumption that costs follow the event and whether there were any exceptional circumstances warranting a deviation from this principle.

The court found that the defendants who sought costs had succeeded overall and were entitled to costs for the steps they had claimed. They correctly identified the proceeding as a Category 2 proceeding, requiring counsel of skill and experience considered average in the High Court. The court also determined that the normal amount of time was reasonable for the allowable steps set out in Schedule 3 to the Rules. However, the plaintiff's application for costs was dismissed for two main reasons. Firstly, the plaintiff had not succeeded overall in the proceeding, despite his reliance on the court's dismissal of the first and third defendant's application for a debarring order. Secondly, there were no exceptional circumstances to justify awarding costs to a lay litigant, as established in New Zealand case law.

The court further considered whether there was any reason to justify a refusal or reduction in the costs the defendants sought. The plaintiff's appeal of the judgment and his application for a recall did not provide sufficient grounds for a departure from the principle that the determination of costs should be predictable and expeditious. Therefore, the court proposed a 25% reduction in the 2B costs claimed by the first and third defendants. The final orders required the plaintiff to pay costs to the first and third defendants, as well as the second defendant, along with disbursements as fixed by the Registrar, and dismissed the plaintiff's application for costs.

Orders