Stewart v Keene

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2023-409-225

[2025] NZHC 1377

BETWEEN
EVAN KERRY STEWART

Plaintiff

AND

ELIZABETH HELEN KEENE

First Defendant

AND

KPMG

Second Defendant

Hearing: On the Papers

Counsel:

R A Hearn for Plaintiff

P C Murray for Defendants

Judgment:

29 May 2025

JUDGMENT OF CHURCHMAN J

[Costs]

Background

[1] In a judgment delivered on 23 August 2023 I dealt with two matters involving these parties.1

[2] In that decision I struck out a set of proceedings commenced by the plaintiff and also dismissed the plaintiff’s application to set aside a judgment on admission of claim in proceedings CIV-2020-409-192.

1 Stewart v Keene and KPMG [2023] NZHC 2325.

STEWART V KEENE AND KPMG [2025] NZHC 1377 [29 May 2025]

[3] Both sets of proceedings had been heard together and I dealt with costs together. I awarded indemnity costs of $47,470 plus disbursements of $1,488.73 in respect of both applications.

[4] The plaintiff did not appeal the strike out decision but did appeal the decision relating to the admission of claim.

[5] The plaintiff’s appeal was successful.2 The Court of Appeal quashed the costs award in that proceeding and directed the matters of costs and disbursements be remitted to the High Court.

[6] By memorandum dated 10 April 2025, counsel for the defendants has submitted a revised costs schedule. Counsel has deducted from the original costs award those costs that related to the matter that was the subject of the successful appeal to the Court of Appeal. The schedule appended to the memorandum details exactly what matters have been deducted.

[7] Counsel for the plaintiff has filed a brief memorandum in reply. The plaintiff submits that the costs relating to the two applications can not be allocated between the two applications with accuracy and submits that the costs awarded should simply be reduced by 50 per cent. This would result in an award of costs to the defendants of
$23,870 plus disbursements of $744.36.

Analysis

[8] On the basis of the information set out in the memorandum filed on behalf of the defendants on 10 April 2025 I am satisfied that the memorandum has accurately distinguished between the costs relating to the judgment that was appealed and the costs relating to the other matter.

[9] I also note the defendants contention that a comparison of the actual costs claimed against scale costs on the 2B basis demonstrates that scale costs would amount

2 Stewart v Keene and KPMG [2024] NZCA 602.

to approximately two thirds of the total actual costs claimed. In this case, consistent with r 14.2(d) of the High Court Rules 2016.

Outcome

[10]Accordingly, the defendants are awarded:

(a)Costs of $25,380; and

(b)Disbursements of $1,393.08.

Churchman J

Solicitors:
Corcoran French, Christchurch for Plaintiff Martelli McKegg, Auckland for Defendants

CaseChat Overview and Summary

The case of Stewart v Keene and KPMG involved the plaintiff, Evan Kerry Stewart, and the defendants, Elizabeth Helen Keene and KPMG. The primary dispute centered around costs related to legal proceedings previously determined by the High Court of New Zealand. In a previous judgment, costs were awarded to the defendants, but this decision was later appealed and modified by the Court of Appeal, which remitted the matter of costs back to the High Court. The defendants subsequently submitted a revised costs schedule, while the plaintiff argued for a 50% reduction in the previously awarded costs.

The legal issues the court had to address included whether the defendants' revised costs schedule accurately reflected the costs associated with the different aspects of the proceedings and whether the original costs award could be appropriately adjusted based on the Court of Appeal's decision. The court needed to determine if the costs could be accurately divided between the matters that were subject to appeal and those that were not, and whether the reduction proposed by the plaintiff was justified.

In its judgment, the court found that the defendants' revised costs schedule accurately distinguished between the costs related to the appealed matter and those related to other aspects of the proceedings. The court also accepted that the comparison of the actual costs claimed against scale costs indicated that the awarded costs were reasonable. Consequently, the court adjusted the costs awarded to the defendants, reducing them from the original amount but not to the extent proposed by the plaintiff. The final costs awarded to the defendants were $25,380, with disbursements totaling $1,393.08.

The court's final orders were that the defendants, Elizabeth Helen Keene and KPMG, were to be awarded costs of $25,380 and disbursements of $1,393.08. This decision effectively resolved the dispute over the costs associated with the legal proceedings, providing clarity and finality to the matter.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established