Staples v Freeman - [2018] NZHC 2406

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2016-409-000309 [2018] NZHC 2406

BETWEEN
BRYAN DOUGLAS STAPLES

First Plaintiff

AND

CLAIMS RESOLUTION SERVICE LIMITED

Second Plaintiff

AND

RICHARD LOGAN FREEMAN First Defendant

AND

MEDIAWORKS TV LIMITED Second Defendant

AND

KATE McCALLUM Third Defendant

AND

TRISTRAM CLAYTON Fourth Defendant

Hearing: 12 September 2018 (Determined on the papers)

Counsel:

P A Morten for Plaintiffs
J W J Graham and T F Cleary for Second to Fourth Defendants

Judgment:

13 September 2018

COSTS JUDGMENT OF ASSOCIATE JUDGE MATTHEWS

[1] On 2 July 2018 the Court issued a judgment on an interlocutory application brought by the plaintiffs for orders directing the giving of further particulars in relation to the defence pleaded by the second, third and fourth defendants of honest opinion, and for orders that each of these parties file a further affidavit of documents giving
further identification of certain documents disclosed in affidavits already filed. Both

STAPLES v CLAIMS RESOLUTION SERVICE LTD [2018] NZHC 2406 [13 September 2018]

applications were successful. The Court directed that the plaintiffs would be awarded costs, but the quantum of costs was reserved.

[2] Counsel have been unable to agree on costs. Five memoranda have been filed.

[3] In summary, the position of the plaintiffs is:

(a)Although there was a single application, costs should be awarded on the basis of two applications because the orders sought were separate and distinct.

(b)Costs should be assessed on band B save for preparation of a bundle of documents which should be assessed on the basis of band C. There should be a 30 per cent increase on band B costs for filing the application for further discovery, preparation of submissions on honest opinion, and preparation of submissions on the further discovery application.

[4] The position of the defendants is:

(a)There should be costs on one application only, and one set of submissions.

(b)There should be no increase for costs in relation to preparation of the bundle of authorities.

(c)There is no principled basis for an increase of costs under r 14.7 for any steps in the proceeding.

(d)Costs should not be awarded for a full day because part of the day was taken up with dealing with an application for discovery by the second to fourth defendants.

(e) They should be awarded costs in relation to the present application.

[5] The plaintiffs claim disbursements of $1,109.44 and the defendants accept that an award in that sum is appropriate.

[6] Five issues are raised.

First issue : costs on two applications?

[7] The accepted authority on this issue is Kite v May in which Master Faire found that if one application is made that embodies a range of orders it still should be considered as one application.1

[8] The plaintiffs relied on the decision in Commissioner of Police v Gong, a decision of Downs J on an originating application in which five separate orders were sought.2 His Honour found that each application was…

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 Staples v Freeman

Details

AGLC: Staples v Freeman [2018] NZHC 2406
Case: [2018] NZHC 2406
Decision Date: 13 September 2018

CaseChat Overview and Summary

In the High Court of New Zealand, Christchurch Registry, the plaintiffs, Bryan Douglas Staples and Claims Resolution Service Limited, sought costs from the defendants, Richard Logan Freeman, Mediaworks TV Limited, Kate McCallum, and Tristram Clayton. The plaintiffs had previously succeeded in an interlocutory application for further particulars and orders for discovery. The matter before the Court was the determination of the costs associated with that application. The Court had to decide whether costs should be awarded for two separate applications, whether there should be an increase in costs for certain steps, whether costs for preparation of a bundle of documents should be assessed under Band C, whether costs should be awarded for a full day or a part day of hearing, and whether an award of costs should be made to the defendants on this application for costs.

The Court found that there should be costs on one application only, as the orders sought were not separate and distinct. The Court assessed the costs on Band B but allowed for a 30 per cent increase for the complexity of the issues argued. The Court did not find that costs for preparation of the bundle of documents should be assessed under Band C, and awarded costs for a full day of hearing. Finally, the Court found that there should be no award of costs on this application for costs, as each side had enjoyed a measure of success.

The defendants will pay to the plaintiffs costs for six days on a Category 2 basis, a total of $13,380 plus disbursements in the sum of $1,109.44.

Orders