Stiles v Stiles

[2020] NZHC 1437

NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B,

11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-1390

[2020] NZHC 1437

IN THE MATTER

of an appeal under s 39 of the Property (Relationships) Act 1976 and s 124 of the District Courts Act 2016

BETWEEN

ANDREW MARK STILES

Appellant

AND

PENNIE LEE STILES

First Respondent

PENNIE LEE STILES and WACKROW SMITH AND DAVIES TRUSTEE

SERVICES LIMITED as trustees of THE STILES FAMILY TRUST

Second Respondents

On papers
Judgment	24 June 2020

JUDGMENT OF DOBSON J

[Costs]

This judgment was delivered by me on 24 June 2020 at 11.00 am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors:

TGT Legal, Auckland for appellant

Ewart & Ewart, Auckland for respondent

STILES v STILES [2020] NZHC 1437 [24 June 2020]

[1]        In my judgment on this appeal issued on 20 December 2019, my direction as to costs was in the following terms:1

[155] Despite the cross-appeals, which were within a narrower compass, not succeeding, I consider that Ms Stiles should be entitled to a partial award of costs in her favour. I accordingly order that the respondent to the principal appeal is entitled to costs at one half of 2B scale.

[2]        On 13 May 2020, counsel for the first respondent (Ms Stiles) filed and served a schedule of the 2B costs claimed, by reference to relevant items in the schedule. The total of the amount claimed, before reducing it by half, was $21,988.

[3]        By memorandum dated 27 May 2020, counsel for the appellant responded to the schedule, taking the point that the sum claimed had not been divided in half to reflect the terms of my judgment, and also contesting certain of the items that were said not to be justified. The appellant’s calculation would allow an award of

$8,962.50.

[4]        I am attaching to this judgment my own schedule reflecting my decision on the allowable items, resulting in an award of $10,336.75.

[5]As to the items in dispute, I rule as follows:

(a)Item 10 – Ms Stiles’ counsel prepared for a first case management conference and had done sufficient to justify a time allocation for it.

(b)Item 13 – the appearance for a first case management conference on 20 November 2019 ought not to have been necessary given it was vacated upon the filing of memoranda. That item is disallowed.

(c)Item 57 – the length of hearing was disputed but is now agreed at

1.5 days.

(d)Item 58 – an award is sought for the appearance of second counsel. The appellant objects to inclusion of this item on the basis that I did not

1      Stiles v Stiles [2019] NZHC 3462.

allow it in my judgment. There is at least a general rule of thumb that an award for second counsel will not be made in a category 2 case unless there is some “exceptional feature”.2 The essential issue is whether the way the appeal was conducted justifies requiring the losing party to contribute to the winning party’s costs in having a junior counsel in court.3 As I acknowledged in my judgment, the appeal raised a diverse range of issues which were marshalled admirably by counsel, both  of  whom  appeared  with  juniors.  I  consider  an  award  for  Mr Vickerman’s junior is warranted.

Dobson J

2      Prattley Enterprises Ltd v Vero Insurance New Zealand Ltd [2017] NZHC 1599 at [44].

3      Nomoi Holdings Ltd v Elders Pastoral Holdings Ltd (2001) 15 PRNZ 155 at [21].

Schedule of Costs

Number	Item	Time allocation (in days)	Half time allocation (in days)	Half cost
1	Item 524: Commencement of response to appeal or cross- appeal	1.0	0.50	$1,195.00
2	Item 10: Preparation for first case management conference	0.4	0.2	$478.00
3	Item 11: Filing memorandum for first or subsequent case management conference or mentions hearing (2 August 2019)	0.4	0.2	$478.00
4	Item 11: Filing memorandum for first or subsequent case management conference or mentions hearing (5 September 2019)	0.4	0.2	$478.00
5	Item 11: Filing memorandum for first or subsequent case management conference or mentions hearing (30 September 2019)	0.4	0.2	$478.00
6	Item 11: Filing memorandum for first or subsequent case management conference or mentions hearing (25 October 2019)	0.4	0.2	$478.00
7	Item 11: Filing memorandum for first or subsequent case management conference or mentions hearing (18 November 2019)	0.4	0.2	$478.00
8	Item 56: Preparation of written submissions	3.0	1.5	$3585.00
9	Item 57: Appearance at hearing for sole or principal counsel	1.5	0.75	$1792.50
10	Item 58: Second and subsequent counsel if allowed by court	0.75	0.375	$896.25
Total	8.65	4.325	$10,336.75

4      The schedules from both parties referred to item 53, which is the item for a response to an appeal or cross-appeal. The allocation for that would be half a day. The more appropriate item is instead 52, which has an allowance of one day.