Street v Fountaine - [2018] NZHC 1671

IN THE HIGH COURT OF NEW ZEALAND MASTERTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHAKAORIORI ROHE

CIV-2014-435-6 [2018] NZHC 1671

BETWEEN
CHRISTOPHER JOHN STREET PHILIP JOHN ENGLAND MICHAEL JOHN STREET JOAN ISABELLA STREET

Plaintiffs

AND

REX ALISTAIR FOUNTAINE

First Defendant

AND

ASHBY DOWNS LIMITED

Second Defendant

AND

ANZ BANK NEW ZEALAND LIMITED

Third Defendant

AND

MARGARET ELIZABETH FOUNTAINE

Fourth Defendant

Hearing: on the papers

Counsel:

R K Macdonald for the Plaintiffs

T G Stapleton QC for the Defendants

Judgment:

9 July 2018

JUDGMENT OF CULL J

[1] The plaintiffs, the Street Trustees, seek costs in relation to proceedings in this Court. In 2016, Clifford J determined the Street Trustees’ claim to register an easement was unsuccessful.1 The Judge awarded 2B scale and increased costs in favour of the

1 Street v Fountaine [2016] NZHC 2343.

STREET v FOUNTAINE [2018] NZHC 1671 [9 July 2018]

defendants.2 The Street Trustees successfully appealed the substantive decision to the Court of Appeal.3 The Court of Appeal also quashed the costs orders made in the High Court and awarded costs to the Street Trustees on a band 2B basis, together with disbursements to be fixed by the Registrar of the High Court.4

[2] The Street Trustees have subsequently filed two memoranda in this Court seeking a determination of the costs and disbursements to be paid to them by the defendants. The first and second defendants oppose some of the items claimed by the Street Trustees.

[3] As I was not the trial Judge in this Court and the Court of Appeal has fixed costs on a 2B basis, the calculation of costs claimed by the Street Trustees must be assessed accordingly.

[4] The defendants dispute several items claimed by the Street Trustees on a number of grounds, including:

(a)items not being required for the proceedings;

(b)excessive claims compared with the defendants’ costs awarded previously; or

(c)items beyond the time allocations and matters in Schedule 3 of the High Court Rules 2016.

[5] I now set out the items in dispute, the defendants’ objections and my findings in relation to each.

2      Street v Fountaine [2016] NZHC 2670.
3      Street v Fountaine [2018] NZCA 55.
4      At [163]–[164].

Memorandum dated 31 October 2014

[6] The defendants’ objection to the claim for preparation of this memorandum is that it was not prepared by plaintiffs’ counsel but by defendants’ counsel and was not required for a case management conference, mentions hearing or callover.

[7] It is correct that the memorandum was prepared by the defendants’ counsel, but was signed by both parties for the purpose of consent orders being made. For that reason, half of the cost sought is approved, namely 0.2 days at the rate of $1,990, totalling $398. This reflects plaintiffs’ counsel’s time in approving the consent orders and signing the memorandum.

Memoranda dated 13 April 2015 and 14 April 2015

[8] The defendants’ objection is that these memoranda were not required for a case management conference, mentions hearing or callover…

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.

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Details

Case: [2018] NZHC 1671
Decision Date: 9 July 2018

CaseChat Overview and Summary

The Street Trustees, comprised of Christopher, Joan, John and Michael Street, brought a claim against Rex Fountaine, Ashby Downs Limited, ANZ Bank New Zealand Limited, and Margaret Fountaine for costs associated with proceedings in the New Zealand High Court. The dispute originated from a claim by the Street Trustees for an easement, which was previously determined unsuccessful by Clifford J. The Court of Appeal overturned the substantive decision but quashed the costs orders made in the High Court. The Street Trustees subsequently filed memoranda seeking a determination of the costs and disbursements to be paid by the defendants. The defendants opposed some of the items claimed by the Street Trustees.

The central legal issue in this case was the determination of costs and disbursements to be paid by the defendants to the Street Trustees. The defendants contested several items claimed by the Street Trustees, arguing they were not required for the proceedings, excessive, or beyond the time allocations and matters in Schedule 3 of the High Court Rules 2016. The court had to assess the items in dispute and the defendants’ objections to determine the appropriate costs and disbursements.

Cull J assessed the cost claims based on the Court of Appeal’s decision, which fixed costs on a 2B basis. The court approved half of the cost for a memorandum prepared by the defendants’ counsel, amounting to $398, reflecting the plaintiffs’ counsel’s time in approving the consent orders and signing the memorandum. Several other memoranda were disallowed as they were not required for the litigation, and correspondence evaluation was disallowed as it was not appropriately claimed. The court approved two days for preparing the common bundle and chronology, but set the allowance for appearance at the hearing at six days, totalling $13,380. The claim for dealing with notices to admit facts and produce documents was disallowed.

Cull J calculated the total costs to the Street Trustees on a 2B basis to be $58,805, while the disbursements were to be fixed by the Registrar as directed by the Court of Appeal. The court ordered that the defendants pay the approved costs and that the disbursements be fixed by the Registrar.

Orders