Taumarunui Liquor 2007 Limited v Beale HC Palmerston North CIV-2011-454-214

[2011] NZHC 1296

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CIV-2011-454-214

BETWEEN  TAUMARUNUI LIQUOR 2007 LIMITED Applicant

ANDMICHAEL BERNARD BEALE Respondent

Judgment:      21 October 2011 at 3:00 PM

JUDGMENT AS TO COSTS OF ASSOCIATE JUDGE D.I. GENDALL

This judgment of Associate Judge Gendall was delivered on 21 October 2011 at 3.00 pm under r 11.5 of the High Court Rules.

Solicitors:           Ferguson Bhullar & Scott, Solicitors, PO Box 26, Taumarunui

Jacobs Florentine, Solicitors, PO Box 237, Palmerston North

TAUMARUNUI LIQUOR 2007 LIMITED V MB BEALE HC PMN CIV-2011-454-214 21 October 2011

[1]      This is a second judgment regarding costs issues which have arisen between the parties and their respective counsel in this matter.  The first judgment I issued on

3 October 2011 concerning costs questions related to a query over disbursements sought by the applicant which were challenged by the respondent.

[2]      The present judgment relates to a further challenge by the applicant as to certain category 2B costs which were also sought by the applicant.

[3]      This costs order relates to the setting-aside of a statutory demand issued by the respondent against the applicant which application was successful in this Court. As a result on 22 September 2011 I ordered that costs in favour of the applicant on a category 2B basis together with disbursements as fixed by the Registrar were to be paid by the respondent.

[4]      The  applicant  has  now  sought  costs  on  a  category  2B  basis  totalling

$6,768.00 which are calculated as follows:

SCHEDULE ONE

Costs – Category 2B ($1,880.00 per day)

Item 25        Preparing & filing specified originating application and supporting affidavits

1.6          $3,008.00

Item 29        Preparing for defended hearing  0.5          $   940.00

Item 23        Appearance at hearing (5 May 2011)           0.4          $   752.00

Item 23        Appearance  at  hearing  (21  September

2011 at 2.15 pm)

Item 30        Appearance  at  hearing  (21  September

2011 at 10.00 am)

0.4          $   752.00

0.5          $   940.00

Item 4.18     Sealing Order  0.2          $   376.00

TOTAL (including GST)  $6,768.00

[5]      Disbursements were also sought as follows:

SCHEDULE TWO

Disbursements, as Ordered by Associate Judge Gendall

Travel expenses (Dale Henderson)  $   183.92

Travel expenses (Geoffrey Henderson)  $   341.00

TOTAL (including GST)  $   524.92

SCHEDULE THREE
Disbursements, as fixed by the Registrar
High Court filing fee on application	$   408.89
Court sealing fee on this Order	$     48.30
TOTAL (including GST)	$   457.19

[6]      Counsel  for the  respondent  in  a memorandum  filed in  this  Court  on  17

October 2011 takes issue with two items.  These are noted as Item 23 – Appearance at hearing 5 May 2011 and Item 23 - Appearance at hearing 21 September 2011 at

10.00 am.

[7]      Counsel for the applicant has himself responded by memorandum dated 20

October 2011.

[8]      Counsel for the respondent contends that the appearance on 5 May 2011 should be part of the preparation for the defended hearing or at best appearance at a case  management  conference  under  Item  28  of  Schedule  Three  (which  would amount only to 0.3 of a day).  He contends also that no charge should be made for the appearance at 10.00 am on 21 September 2011 as this was occasioned simply by the applicant’s late filing of affidavits and synopsis of argument in breach of r 7.39 in that the applicant’s synopsis was filed and served on the day of the hearing.

[9]      The respondent’s position is therefore that these two items claimed under Item 23 totalling 0.8 of a day should be disallowed and the amounts claimed for these items totalling $1,504.00 deducted from the $6,768.00 costs claim.

[10]     In response, counsel for the applicant notes that the appearance on 5 May

2011  was  the  first  call  of  the  applicant’s  application  to  set-aside  the  statutory demand.  It was a call in the Associate Judges List at Palmerston North. An award of costs for this appearance is clearly appropriate.  The applicant has claimed 0.4 of a day for this appearance under Item 23 of Schedule Three as being an “Appearance at hearing”.    This  5  May  2011  appearance,  however,  was  not  a  hearing  of  the application but rather it was an “appearance at mentions hearing or call over” under

Item 4.17 of Schedule Three which would have resulted in a costs award of 0.2 of a day.

[11]     This claim of 0.4 of a day for appearance at hearing on 5 May 2011 is therefore varied to 0.2 of a day for “appearance at a mentions hearing” pursuant to Item  4.17.    An  appropriate  adjustment  to  the  final  costs  award  is  to  be  made regarding this.

[12]     Turning now to the second objection relating to the claim for 0.4 of a day under Item 23 for “Appearance at hearing” at 10.00 am on 21 September 2011, counsel for the applicant contends that this is a perfectly appropriate claim under all the circumstances here and should be allowed.

[13]     Counsel for the applicant explains that this matter was always set down for defended hearing at 2.15 pm on 21 September 2011.  It was a last minute request of counsel  for  the  respondent  that  caused  an  arrangement  to  be  made  for  this proceeding to be called at 10.00 am on 21 September 2011.  This was purely in order that the respondent could make application for an adjournment of the defended fixture that afternoon.   That application was argued and failed.   The adjournment request was declined.

[14]     The respondent’s suggestion that the application for adjournment was due to lateness on the part of the applicant in filing affidavits in reply and his synopsis of argument were dismissed.  I found the lateness did not prejudice any party and that in fact the respondent had earlier needed to make application for leave to be heard in this matter as his opposition to the application had itself been filed out of time.

[15]     I find therefore that the claim under Item 23 of 0.4 of a day for appearance at the hearing at 10.00 am on 21 September 2011 is appropriately claimed.

[16]     In conclusion, for the reasons outlined above it will be apparent that the only change to the applicant’s category 2B costs claim totalling $6,768.00 here is for the deletion of Item 23 – Appearance at hearing 5 May 2011 (0.4 of a day) totalling

$752.00 and the substitution for this of Item 4.17 – Appearance at mentions hearing

(0.2 of a day) totalling $376.00.

[17]     This reduces the overall costs claim to the sum of $6,392.00.  An order for category 2B costs of this sum of $6,392.00 together with travel expenses and disbursements totalling $524.92 and other disbursements totalling $457.19 is now made in favour of the applicant.

‘Associate Judge D.I. Gendall’