Takarangi v McConkey

[2021] NZHC 2188

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CIV-2019-054-486

[2021] NZHC 2188

BETWEEN

MELANIE KIM TUKIA TAKARANGI

Plaintiff/Counterclaim Defendant

AND

GEMMA MCCONKEY

Defendant/Counterclaim Plaintiff

Hearing:

On the papers

Appearances:

J Forrest for plaintiff/counterclaim defendant

M Josephson for defendant/counterclaim plaintiff

Judgment:

25 August 2021

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

[Costs]

[1]        In my judgment of 16 July 2021, I ordered the defendant and counterclaim plaintiff to pay security for costs in the total sum of $15,000 ($7,500 immediately and

$7,500 when the case is set down for trial). I reserved costs on the application in the expectation that counsel would be able to resolve these. That has not happened, and I must now deal with costs.

[2]        Rule 14.8 of the High Court Rules provides that costs are to be dealt with at the conclusion of interlocutory proceedings unless special circumstances dictate otherwise. It is not suggested by counsel that there are any special circumstances that would justify delaying a determination of costs here.

[3]        Costs are quintessentially a matter of discretion, though of course, like all discretions, this one must be exercised on a principled basis.

TAKARANGI v MCCONKEY [2021] NZHC 2188 [25 August 2021]

[4]        In all but exceptional circumstances costs are awarded in accordance with the scales contained in the Rules.

[5]        In my 16 July 2021 judgment I indicated that my preliminary view was that the plaintiff and counterclaim defendant was entitled to costs as the successful party and that my inclination was to think that any costs award should be on a 2B basis, that is to say on the middle bands of the scales provided for in the Rules. On behalf of the plaintiff and counterclaim defendant Ms Forrest has provided a schedule of costs and disbursements calculated on that basis. The costs total $7,648 and there are disbursements of $1,379.40 making a total claim of $9,027.40. Those calculations are not challenged by Mr Josephson on behalf of the defendant and counterclaim plaintiff.

[6]        However, Mr Josephson submits that the order for security for costs itself presents a significant hurdle for the defendant and counterclaim plaintiff, and that the Court should not place another barrier in front of her by making a costs award at this stage. On that basis, he submits that the costs of the application should be allowed to lie where they have fallen.

[7]        I do not accept that submission. As already said, the rules provide that costs in interlocutory applications should be settled at the conclusion of those proceedings unless there are special reasons and I do not accept that a modest award of security for costs is such a reason.

[8]        In the alternative, Mr Josephson submits that there should be a reduction on the amount of 2B costs and a stay of enforcement of any such costs award until the litigation is disposed of.

[9]        Presumably, the basis of the first limb of that contention is the same as that advanced in support to the argument that costs should be allowed to lie where they have fallen. As to the question of a stay of enforcement, that would have a similar effect to reserving costs which would be inconsistent with r 14.8.

[10]      Finally, Mr Josephson submits that the Court should not allow disbursements connected with counsel’s travel between Auckland and Palmerston North. The

contention in relation to this is that the matter was Palmerston North one and should have been handled locally.

[11]      Prima facie the Court is obliged to respect a party’s choice of solicitors and counsel. In a very straightforward case the Court may refuse to allow a party to recover disbursements for travel if there is simply no justification for counsel travelling. However, although not especially difficult, this case was not without its complications. Both parties engaged out of town solicitors and counsel. The reality  is that for each party it would have been more costly to engage local counsel and have them come up to speed with the case than to pay travel costs. In those circumstances, it is entirely appropriate for the party entitled to a costs award to claim disbursements in relation to travel expenditure.

[12]      The plaintiff and counterclaim defendant is entitled to an award of costs and disbursements in the total sum of $9,027.40 as set out in the schedule to Ms Forrest’s memorandum of 5 August 2021.

Associate Judge Johnston

Solicitors and counsel:

Janey Forrest, Barrister, Miramar for plaintiff/counterclaim defendant Cairns Slane, Auckland for defendant/counterclaim plaintiff