Stalker v Duncan - [2020] NZHC 2344

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2018-412-97

[2020] NZHC 2344

BETWEEN
DOUGLAS BLAIR STALKER and

PAMELA ROBYN STALKER, trustees of the D B & P R Stalker Family Trust

Plaintiffs

AND

PHILLIP JAMES DUNCAN

Defendant

Hearing: Determined on the papers

Counsel:

M D W King for Plaintiffs J Eckford for Defendant

Judgment:

9 September 2020

JUDGMENT OF JUSTICE OSBORNE

(Costs)

This judgment was delivered by me on 9 September 2020 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

STALKER v DUNCAN [2020] NZHC 2344 [9 September 2020]

[1] This judgment determines the costs to be paid by the defendant (Mr Duncan) to the plaintiffs (the Stalkers). The Stalkers were successful in claiming damages for pre-contractual misrepresentation in relation to the contract by which Mr Duncan sold a farm property to the Stalkers.1 The damages awarded, following a five day trial, were $515,250.00.

[2]It is common ground that costs must, in this case, follow the event.2

[3] It is also common ground that, having regard to offers (beginning in September 2019) by the Stalkers to settle their claims, the Stalkers are entitled to an uplift from scale costs on steps taken from September 2019. The Stalkers had been prepared to settle for sums less than the damages subsequently awarded following trial.3

[4] Mr Duncan takes no issue with the Stalkers’ claim for their reasonable disbursements, which totals $56,933.30.

The Stalkers’ costs calculations

[5] The Stalkers’ costs calculations were set out by counsel, as attached in Schedule 1 to this judgment. The claimed costs total $93,871.50. For six of the items claimed, the Stalkers seek an uplift of 50 per cent.4

Mr Duncan’s position

[6] Mr Duncan, through counsel, agreed with all the Stalkers’ costs calculations bar two.

1      Stalker v Duncan [2020] NZHC 1484.
2      In accordance with High Court Rules 2016, r 14.2(1)(a).
3      In accordance with High Court Rules 2016, r 14.10.
4      Invoking Holdfast NZ Ltd v Selleys Pty Ltd (2005) 17 PRNZ 897 (CA) at [47].

Preparation for case management conference

[7] The Stalkers (in Schedule 1) have claimed a total of three sets of preparation for three case management conferences.

[8] Through r 14.5 and Schedule 3, High Court Rules, a reasonable time for identified steps is specified.

[9] Item 10 in Schedule 3 identifies the reasonable time taken in preparing for a first case management conference.

[10] Ms Eckford, for Mr Duncan, opposes any allowance for preparation in relation to the two subsequent case management conferences.

[11] I uphold the objection. The allowance of preparation for a first conference flows from the extensive requirements made of counsel under r 7.3 to deal with all Schedule 5 matters and to comply with r 7.3 generally. That is a one-off preparation.

[12] The Stalkers ought to have claimed Item 11 only once. I allow for that Item the sum of $892.

Uplift for discovery

[13] The Stalkers seek increased…

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 Stalker v Duncan

Details

AGLC: Stalker v Duncan [2020] NZHC 2344
Case: [2020] NZHC 2344
Decision Date: 9 September 2020

CaseChat Overview and Summary

The High Court of New Zealand, Dunedin Registry, adjudicated on the costs to be paid by Phillip James Duncan (the defendant) to the plaintiffs, Douglas Blair Stalker and Pamela Robyn Stalker, trustees of the D B & P R Stalker Family Trust. The plaintiffs successfully claimed damages for pre-contractual misrepresentation in relation to the sale of a farm property by the defendant, with the damages awarded amounting to $515,250.00. The central issue was the determination of costs to be paid by the defendant to the plaintiffs under the High Court Rules. The court acknowledged that costs must follow the event, and that the plaintiffs were entitled to an uplift from scale costs from September 2019 due to their settlement offers.

The court scrutinised the plaintiffs' costs calculations, which totalled $93,871.50. The defendant agreed with most of the claimed costs, except for two items. The plaintiffs claimed costs related to preparation for three case management conferences, while the defendant objected to the allowance for the two subsequent conferences. The court allowed for preparation only in relation to the first conference. Regarding the discovery of documents, the plaintiffs sought increased costs as the documents pursued by the defendant were deemed irrelevant. The defendant argued that the discovery was appropriate, given the relevance of the stock-carrying history. The court allowed the plaintiffs' claim for discovery costs but reduced the allocation to reflect the appropriate duration.

The final calculation of the costs to be paid to the plaintiffs amounted to $89,300, deducting the disallowed claims from the total claimed costs. The court ordered the defendant to pay the plaintiffs the calculated costs and their disbursements. The judgment emphasised the need for adherence to the High Court Rules and the principles of proportionality in awarding costs.

Orders