Siemer v Legal Complaints Review Officer

[2022] NZHC 2943

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-0099

[2022] NZHC 2943

BETWEEN

VINCENT SIEMER

Applicant

AND

LEGAL COMPLAINTS REVIEW OFFICER

First Respondent

CLAYTON LUKE

Second Respondent

JANE SIEMER

Third Respondent

Hearing:	On the papers
Judgment:	9 November 2022

JUDGMENT OF HARLAND J

[Settling costs judgment]

This judgment was delivered by me on 9 November 2022 at 4:00 pm pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

……………………………..

Counsel/Solicitors: Crown Law, Wellington

Meredith Connell, Auckland K Muller, Auckland

Copy to: V Siemer and

J Siemer

SIEMER v LEGAL COMPLAINTS REVIEW OFFICER [2022] NZHC 2943 [9 November 2022]

[1]On 3 May 2022 I issued a judgment ordering that the second respondent pay

$6,324 in costs to the applicant.1

[2]        On 3 May 2022, the same day as my costs judgment issued, Mr Thwaite, acting for the applicant, applied for an additional sum to cover the costs associated with sealing my judgment. The additional amount comprises $528 for costs and disbursements, $478 costs (0.2 days, at $1,390 per day)2 and a $50 fee.3

[3]        Other work-related matters intervened, and regrettably Mr Thwaite’s application was overlooked.

[4]        On 28 September 2022, Mr Thwaite filed a memorandum in which he outlined that the second respondent had failed to pay the judgment amount and accordingly the applicant required a sealed order to enable him to commence bankruptcy proceedings against the second respondent. Correspondence between counsel for the applicant and second respondent was attached to the memorandum, as was a copy of an email from the Registry dated 3 June 2022.

[5]        Counsel for the applicant’s memorandum of 28 September 2022 was immediately followed by counsel for the second respondent filing a memorandum outlining that the second respondent “is fully prepared to pay the costs due to the applicant once they are known, but at present they are still being determined by the Court”. It is not clear what the counsel for the second respondent is referring to exactly when she referred to costs “still being determined by the Court”, but this could refer to the fact that applicant had filed an appeal to the Court of Appeal against my costs judgment of 3 May 2022.

[6]        This was followed by a memorandum in response by counsel for the applicant4 essentially outlining that had the costs award had been paid in early May 2022, the applicant would not have sought to seal the judgment and therefore would have had no claim for the costs of sealing the judgment.

1      Siemer v Legal Complaints Review Officer [2022] NZHC 908.

2      High Court Rules 2016, Schedules 2 to 3.

3      High Court Fees Regulations 2013, Schedule, Item 51.

4      Dated 29 September 2022.

[7]        In general, claims for sealing of judgment are made when costs are claimed, either on the assumption that sealing of the judgment was imminent, on a conditional basis, or by reserving leave to apply.5 Nonetheless an alternative course is to make a separate application for the costs of sealing a judgment,6 the course of action followed in this case.

[8]        Although the application for an additional $128 for costs and disbursements was filed on the day that my judgment was issued, it is clear from the documents provided that attempts have been made to try and resolve this matter without the need to seal the judgment. These have not succeeded. Counsel clearly have different views about the timing of payment of costs.

[9]        I am satisfied that it is appropriate to award an additional $528 in costs and disbursements in favour of the applicant.

Result

[10]      The application for additional costs for sealing the order included in my judgment dated 3 May 2022 amounting to $528 is granted. This means the total costs awarded in favour of the applicant are $6,852.

Harland J

1. Fullarton v AWN Holdings Limited[2021] NZHC 1873 at [38]; Small (2005) Limited v Mahon

[2022] NZHC 2182 at [15]; and Powell K-2 Investment Group Limited [2021] NZHC 2862 at [23].

6      Evans v Clutha District Council [2019] NZHC 549 at [12].