Stanley v Fielding-Link

[2023] NZHC 2872

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-1257

[2023] NZHC 2872

IN THE MATTER

of an originating application seeking the High Court’s assistance in aid of the County Court at Liverpool, England in bankruptcy

under s 8 of the Insolvency (Cross Border) Act 2006

AND

IN THE MATTER

of the bankrupt estate of KAY SUZANNE FIELDING-LINK (England)

BETWEEN

PAUL STANLEY and PAUL BARBER

Plaintiffs

AND

KAY SUZANNE FIELDING-LINK (also

known as KAY SUZANNE LINK) Defendant

Counsel:	J S Langston for the Plaintiffs S A Keall for the Defendant
Judgment:	13 October 2023

JUDGMENT OF WOOLFORD J

(Costs)

This judgment was delivered by me on Friday, 13 October 2023 at 2:15 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:           Shieff Angland (K Crossland), Auckland

Pidgeon Judd (L Judd), Auckland Counsel:     S Keall and R Latton, Auckland

STANLEY v FIELDING-LINK [2023] NZHC 2872 [13 October 2023]

Introduction

[1]    The plaintiffs, Mr Stanley and Mr Barber, are the joint trustees in the English bankruptcy of the defendant, Ms Fielding-Link. A letter of request for aid was issued from the English bankruptcy Court for this Court to act in aid of a proceeding in the United Kingdom. Pursuant to r s 8 of the Insolvency (Cross-border) Act 2006 (ICBA), the plaintiffs sought orders to give effect to the letter of request.

[2]    The matter was initially set down for formal proof on 2 March 2023. However, on 1 March 2023 defence counsel filed a memorandum and draft statement of defence. Counsel for the defence requested leave to file a statement of defence, citing that for a number of reasons, including counsel illness, filing of the statement of defence had inadvertently been overlooked. By minute dated 2 March 2023,1 I granted leave to the defendant to file a statement of defence and evidence and adjourned the proceeding for a substantive hearing before Campbell J on 12 June 2023.2

[3]    In granting leave, I acknowledged that there had been an element of wasted costs and invited the parties to agree on a suitable sum, or otherwise file memoranda. The parties could not reach agreement.

Approach

[4]    It is well settled that there is jurisdiction to order a party to pay wasted costs where they have defaulted and caused a fixture to be vacated.3 This jurisdiction is not provided for in the High Court Rules 2016 and is an exception to the usual rule that costs follow the event, as there has been no “event” in this case.

[2]                 The authors of McGechan on Procedure helpfully summarise the approach as follows:4

(1)  Jurisdiction

…

1      Stanley v Fielding-Link HC Auckland CIV 2022-404-1257, 2 March 2023.

2      Stanley v Fielding-Link [2023] NZHC 2259.

3      Jeffreys v Morgenstern [2013] NZHC 1361 at [31].

4      Jessica Gorman and others McGechan on Procedure (online looseleaf ed, Thomson Reuters) at [HRPt14.16A].

The rationale for the jurisdiction is twofold:

(a)   To compensate the other party or parties not in default who have wasted costs (including disbursements and the fees of expert witnesses).

(b)   To impose a sanction on the defaulting party, in an effort to avoid future wastage of costs and of judicial and court resources, and inconvenience to other parties awaiting fixtures in the court…

…

(4) Quantum

Only costs directly thrown away as a result of the vacating or discontinuing of the hearing are awarded. When a fixture is vacated beforehand these comprise “trial focused” costs – costs thrown away because they will have to be incurred all over again in preparation for the fresh fixture… The amount awarded is very much a matter “of impression and best judgment of the court at the time”.

(References omitted)

Discussion

[5]        Ms Langston, for the plaintiffs, filed a memorandum dated 4 September 2023 seeking wasted costs of $3,943.50 plus disbursements of $50 for sealing of the wasted costs order (not yet incurred). Costs were calculated on a 2B basis, excepting a claim of $478.00 for filing of the costs memorandum, which was calculated on a 1B basis.

[6]        Ms Langston submits that after the hearing, the plaintiffs sought $2,987.50 from the defendant (being 2B scale costs less the steps for filing the costs memorandum and sealing the anticipated order). Ms Langston says that counsel for the defendant took issue with the inclusion of a step for preparing a bundle of authorities (BOA). Counsel for the defendant referred to the minute of 2 March 2023 which stated that “wasted costs should not be anywhere near the total…given that the…bundle of authorities will be much the same for the substantive hearing.”5 Despite this, the plaintiffs maintain that it was necessary to prepare a new BOA for the substantive hearing.

[7]        I have considered the two sets against one another and found that they are near identical. Crucially, all of the authorities included in the 2 March 2023 BOA for the

5      Stanley v Fielding-Link, above n 1, at [9].

formal proof carry over to the 12 June 2023 BOA for the substantive hearing. There are minor additions to the latter. It follows that costs were not wasted in preparing the 2 March 2023 BOA.

[8]I am satisfied that the remainder of the claim is reasonable.

Result

[9]         I award total wasted costs and disbursements of $2559.50 to Mr Stanley and Mr Barber against Ms Fielding-Link, being the amount sought less the step for preparing the 2 March BOA.

Woolford J