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 for a debarring order as a measure of his success in respect of their application, he is not the party that has succeeded overall. Secondly, even if his measure of success might otherwise lead to an expectation of a costs award there is an established rule in New Zealand that a lay litigant is not entitled, except in exceptional circumstances, to recover costs.4 The circumstances of this case are not exceptional and do not warrant a departure from the established rule. The request for

a debarring order, though made for the first time in written submissions and without sufficient notice to Mr Siemer to enable him to prepare for an order of undoubted significance, is not sufficient reason to depart from the rule. Nonetheless I consider it is a reason for making some appropriate reduction under r 14.7 in the costs awarded against Mr Siemer which I will return to momentarily.

[9]     I turn then to consider whether a reason exists to justify a refusal or reduction to the costs the defendants seek.

[10] Mr Siemer relies on two factors: that he appeals the judgment of 28 June and has sought a recall.  On 28 July 2013 I dismissed the application for recall. As far as

the appeal is concerned I do not see that as sufficient reason to depart from the principle that the determination of costs should be predictable and expeditious.5 If there is merit in the appeal Mr Seimer may seek to have the costs orders stayed pending determination of the appeal.

[11] I propose to deal with the matter by allowing a 25 per cent reduction in the 2B costs claimed by the first and third defendants.

[12]     I make these orders:

(a)The  plaintiff  is  to  pay  to  the  first  and  third  defendants  costs  of

$4,776.00 (being the amount of $6,368 claimed less 25 per cent), plus disbursements as fixed by the Registrar.

(b)The plaintiff shall  pay the second defendant costs of $5,572 plus disbursements as fixed by the Registrar.

(c)Mr Seimer’s application for costs is dismissed.

H Sargisson Associate Judge