Sime v Maungatapere Community Church (inc)
[2017] NZHC 2985
•4 December 2017
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA
WHANGĀREI TERENGA PARĀOA ROHE
CIV-2016-488-121 [2017] NZHC 2985
UNDER the Declaratory Judgments Act 1908 and
the Judicature Amendment Act 1972
IN THE MATTER
of the Maungatapere Community Church incorporated under the Charitable Trusts Act 1957
BETWEEN
A L SIME, G D SIME, R G DAY,
P M DAY, K N RUSSELL, A RUSSELL, T J BARFOOTE AND C J BARFOOTE Plaintiffs
AND
MAUNGATAPERE COMMUNITY CHURCH (INC)
First Defendant
R S JOHNSON Second Defendant
A W McGLADDERY Third Defendant
Hearing: On the papers Appearances:
Plaintiffs in person
J A Browne and P J Wilson for the DefendantsJudgment:
4 December 2017
JUDGMENT OF WOODHOUSE J (Costs)
This judgment was delivered by me on 4 December 2017 at 3:00 p.m. pursuant to r 11.5 of the High Court Rules 1985.
Registrar/Deputy Registrar
SIME v MAUNGATAPERE COMMUNITY CHURCH (INC) [2017] NZHC 2985 [4 December 2017]
[1] In my substantive judgment in this proceeding I dismissed the plaintiffs’ claims and entered judgment for the defendants on counterclaims.1 On the question of costs I concluded:2
There is an order that the plaintiffs pay the defendants’ costs of and incidental to this proceeding, should the defendants seek costs. If the defendants seek costs the parties should, in the first instance, endeavour to reach agreement on an appropriate sum. If agreement has not been reached by 29 September 2017 the defendants shall, by 13 October 2017, file a memorandum in support of their application for costs and any memorandum in response for the plaintiffs
shall be filed and served by 27 October 2017.
[2] On 11 October 2017 a memorandum for the defendants was filed in which the defendants seek costs. In this memorandum the defendants advised that they attempted to reach agreement with the plaintiffs on costs, in accordance with the direction at [84], but without success. The defendants advised that they had offered to accept costs assessed on a 2B basis together with specified disbursements, but there had been no response from the plaintiffs to that offer. The defendants now seek costs on a 2B basis increased by 50 per cent for increased costs pursuant to r 14.6(3) of the High Court Rules.
[3] As recorded at [84] of the substantive judgment, any memorandum in response for the plaintiffs was required to be filed and served by 27 October 2017. No memorandum has been filed. I will accordingly determine the matter on the basis of the submissions filed for the defendants.
[4] Given the matters at issue in the proceeding, and the general nature of the proceeding, the minimum costs entitlement is costs assessed on the standard 2B scale. The question is whether there should be increased costs.
[5] The defendants seek increased costs in reliance on the following provisions in r 14.6(3):
(a) A failure to comply with rules in the course of the proceeding and a failure to comply with directions of the Court.
1 Sime v Maungatapere Community Church (Inc) [2017] NZHC 2191.
2 At [84].
(b)Pursuing arguments that lacked merit or failing, without reasonable justification, to admit facts or accept the legal argument.
(c) Failing to accept an offer of settlement.
[6] I am satisfied that all three matters are established. This is for the reasons set out in detail in the defendants’ memorandum, and in respect of matters which I accept are established. I also agree with the defendants’ submission that the main ground for increased costs is that the proceeding lacked utility and merit. I also consider that the position adopted by the plaintiffs on numbers of matters were positions that should not have been taken. In some cases this did involve, as the defendants submit, allegations of impropriety for which there was no evidence. Aspects of this are noted in the course of the substantive judgment.
[7] The defendants have produced a schedule of 2B costs totalling $29,659 (including costs on the costs application, assessed by analogy), calculated in accordance with the relevant parts of schedules 2 and 3 of the High Court Rules. I am satisfied that costs of that sum should be increased by 50 per cent, resulting in a costs order of $44,488.50, subject to a further claim for disbursements.
[8] The defendants’ claim for disbursements totalling $2,009.69, itemised in the schedule, are approved.
[9] There is a further claim for an expert witness fee of $4,576.25 in respect of evidence of Dr V B Patrick. The defendants’ counsel has responsibly noted in the defendants’ memorandum the position that had been taken by the plaintiffs in earlier communications. This includes the fact that the plaintiffs contest liability for Dr Patrick’s fee because I did not refer to Dr Patrick’s evidence in the judgment. The defendants submit that Dr Patrick’s evidence was relevant to a doctrinal argument advanced by the defendants, and relating to the doctrinal issues that had arisen between the plaintiffs on the one hand and the defendants and other members of the Church on the other.
[10] The plaintiffs are correct, but it goes further. I did not consider that the differences between the parties on doctrine needed to be addressed (to the extent that the Court can address such issues), because they were not relevant to the claim or the counterclaims. There was a pleading in the statement of defence that doctrinal issues were not justiciable, but matters of doctrine were not put in issue by the claim.
[11] In these circumstances I am not persuaded that there should be an order for payment of Dr Patrick’s fee, with this conclusion fortified by the fact that the increase of the 2B scale by 50 per cent is a substantial increase.
Result
[12] There is an order that the plaintiffs pay the defendants’ costs in a total sum of
$46,498.19.
Woodhouse J
Parties / Solicitors: The plaintiffs
Mr S Henderson, Mr J A Browne and Ms P J Wilson (defendants’ instructing solicitor), Henderson
Reeves Connell Rishworth Lawyers Ltd, Whangarei
0