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 costs in relation to discovery upon the basis that documents pursued by Mr Duncan were irrelevant.

[14]            Mr King, for the Stalkers, notes that Mr Duncan’s request for discovery of stock records covered the period when the Stalkers ran the purchased farm in conjunction with a separate farm. Mr King submits that, because the records did not differentiate between stock located on either farm, the discovery material could not prove or disprove issues of stock capacity at the purchased farm alone. Mr King referred to correspondence in which the Stalkers’ solicitors asserted the irrelevance of the documents at the time.

[15]            Mr King noted that the documents ultimately discovered were not considered in any detail at trial. The single reference to the documents in evidence was in the evidence of one witness who incorrectly understood that the records related solely to the purchased farm.

[16]            For Mr Duncan, Ms Eckford opposes any uplift on scale costs relating to discovery.

[17]            Ms Eckford submits that the Stalkers’ stock records were relevant, or at least potentially relevant notwithstanding that they covered, without distinction, stock on both farms. She submits that discovery was appropriate – she refers to the fact that the Stalkers’ own expert was able to draw conclusions from Mr Duncan’s stock records which were similarly documented in his financial statements without distinguishing between the separate farms he operated.

[18]            Ms Eckford further noted that the stock records did not represent a substantial part of the Stalkers’ discovery. She observed that, when the stock records came to be included in the bundle, that was done at the request of the Stalkers’ counsel.

[19]            I uphold Mr Duncan’s objection in relation to an uplift of the Item 20 allocation. Given the significance of the stock-carrying history, the discovery of the Stalkers’ documents was appropriate. The fact that the documents were not subsequently referred to in detail at trial does not detract from that conclusion.

[20]            I therefore allow the Stalkers’ their claim for Item 20 on a 2B basis only (that is, 2.5 days, being $5,575).

Final calculation of plaintiff ’s costs

[21]            The final calculation of the costs to be paid to the Stalkers is $89,300. This is calculated by reference to the total claimed of $93,871.50 less the two disallowed claims ($1,784.00 and $2,787.50).

Order

1. I order that that Mr Duncan pay to the Stalkers –

(a)costs fixed in the sum of $89,300.00; and

(b)disbursements fixed in the sum of $56,933.30.

Osborne J

Solicitors:

Lane Neave, Christchurch Parker Cowan, Queenstown

Schedule 1

2B Scale Costs - Attendances for the Plaintiff

1		Commencement of Proceeding	3	$6,690
10		Preparation far CMC	0.4x3	$2,676
11		Memorandum for CMC	0.4 x3	$2,676
13		Appearance at first CMC on 1 May 2019	0.3	$669
13		Appearance at subsequent CMG on 4 April 2019 (Judicial Conference)	0.3	$669
13		Appearance at subsequent CMC on 28 June 2019	$669
15		Preparation for and appearance at pre-trial conference	OI	$1,195
17		Answer to Interrogatories	1	$2,390
20		List of documents on discovery	2.5	$5,575 •   50% = $8, 362.50
21		Inspection of documents	1.5	$3,345
53		Preparation of briefs, list of issues, authorities, and agreeing common bundle	$11,950 + 50% = $17,925
33A		Additional allowance for common bundla	0.5	$1,195 + 50% = $1,792.50
33B		Preparatonforhearing	$11,950 + 50% = $17,925
34		Appearance at hearing for sole or principal counsel	5 days	+ 50% — g17,925
35		Appearance for second and subsequent counsel	5 days (50% of slap 34)	85,975 + 50% = $8,962.50
Ton				$93,871.6 0