Stewart v Keene

[2025] NZHC 1377

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