Smith & Sons Si Limited v Sear

[2019] NZHC 2573

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2019-412-27

[2019] NZHC 2573

BETWEEN

SMITH & SONS SI LIMITED

Plaintiff

AND

THOMAS JOHN SEAR and LYNDA MAREE WRIGHT-SEAR

Defendants

Hearing:	10 October 2019 (On the papers)
Appearances:	S A McClean for Plaintiff Defendants self-represented
Judgment:	10 October 2019

SUPPLEMENTARY JUDGMENT OF ASSOCIATE JUDGE LESTER

[1]                  In my judgment of 2 September 2019, a number of matters were left for clarification.1

[2]                  The first is whether the amounts for which judgment was to be entered were GST inclusive or not.

[3]                  Judgment is confirmed in terms of [70] of my judgment of 2 September 2019, save that the amount for signage at para [70](d) is $340 (GST exclusive) and the amount for [70](e) is $750.43 (GST exclusive).

1      Smith & Sons Ltd v Sear [2019] NZHC 2170.

SMITH & SONS SI LIMITED v SEAR [2019] NZHC 2573 [10 October 2019]

[4]                  Accordingly, the judgment sum is $39,198.97 less $5.00 for the reasons given below.

Legal costs

[5]                  While I continue to be of the view that the amount of costs sought is out of proportion to the claim, that of itself is not grounds under the High Court Rules for me to determine that the costs claimed are unreasonable see McGechan on Procedure para HR 14.06.03(2)a.

[6]                  The plaintiff produces the invoices for which costs are claimed and provides expanded narrations, details of the time recorded and in some cases written off to arrive at the amounts claimed. None of the steps taken can be classified as unnecessary nor can the hourly rates disclosed be said to be excessive. It does not follow from the fact that this proceeding could have been brought in the District Court that the steps to be taken or the time spent would have been different. The District Court Rules relating to summary judgment mirror those of the High Court.

[7]                  Accordingly, there is judgment for “proceedings costs” and disbursements in the sum of $32,630.50 which excludes GST.

[8]                  The defendants have referred to an issue concerning the treatment of a service disbursement. It would appear from para 26 of the defendants’ memorandum that the amount claimed has overstated the document service by incorrectly deducting the GST amount. It appears the GST adjusted amount has been overstated by $5.00 and the amount claimed for costs and disbursements is therefore reduced by $5.00.

[9] The defendants do not dispute the interest claimed save for noting that the adjustment noted at [8] above will have a minor impact on the interest calculations which the plaintiff will have to adjust (at its own cost).

[10]              Accordingly, the plaintiff is entitled to judgment as sought at para 35 of its memorandum dated 23 September 2019. That is subject to the adjustment referred to above, which will have a minor consequential effect on the interest claim. Given the impact of the $5.00 deduction of interest will be very small, I do not require the adjusted figure to be referred back to me.

[11]              The Registrar may seal judgment for interest upon the plaintiff demonstrating that   the   interest   figures   in   para   35   of   the   plaintiff’s   memorandum   of   23 September 2019 have been adjusted accordingly.

Associate Judge Lester

Solicitors:

Anderson Lloyd, Christchurch Defendants (self-represented)