Te Wani v PWI Limited

[2013] NZHC 3080

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2013-404-003813 [2013] NZHC 3080

BETWEEN  LUCY TE WANI and

SHAUN PAUL WEHEA RACKLEY Plaintiffs

ANDPWI LIMITED Defendant

Hearing:                   (On the papers) Appearances:     Ms Te Wani in Person

G Collecutt for the Respondent

Judgment:                21 November 2013

[COSTS] JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie on 21 November 2013 at 12.30 pm

Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

TE WANI & ANOR v PWI LIMITED [2013] NZHC 3080 [21 November 2013]

Introduction

[1]      I refer to my reserved judgment issued on 17 October 2013.  I held that the respondent, PWI Limited, had made out a reasonably arguable case that it had an interest under a sale and purchase agreement, and that a caveat it had lodged against the property the subject of the agreement should not be removed.   I recorded that PWI Limited was entitled to its costs, although noting that it had failed in two of the arguments advanced by it.

[2]      PWI Limited now seeks costs in the sum of $8,258.50, and the filing fees paid  by  it  in  respect  of  the  notice  of  opposition  and  in  respect  of  sealing  the judgment.   The costs and disbursements claimed are in total $8,418.50.   It has calculated the costs on a 2B basis, applying the relevant schedule items detailed in the High Court Rules.

[3]      Ms Te Wani resists the amount claimed.   She points out that PWI Limited won on only two grounds advanced by it, but lost on two other grounds.  It is her argument that both she and PWI Limited won and lost, and that they should therefore be “even”.  She also argues that evidence adduced by PWI Limited in support of its position will be available when the matter proceeds to a substantive hearing and that therefore that cost has not been wasted.   She also argues that she should not be required to pay any costs until the substantive case is finally determined.

Analysis

[4]      The High Court Rules seek to provide some certainty in relation to costs. The primary principle is that the unsuccessful party should bear the costs of the successful party.   The rules contain rates and steps designed to deliver to the successful party approximately two-thirds of the daily rate considered reasonable, once the proceeding has been placed in its appropriate category, taking into account its complexity and significance.

[5]      The rules also require that costs on an opposed interlocutory application should  generally be  fixed  in  accordance with  the rules  when  the  application  is determined, and that they become payable when they are fixed.

[6]      Pursuant to r 14.7, the court can refuse to make an award of costs, or reduce the costs otherwise payable, if the party entitled to costs has failed in relation to a cause of action or issue which significantly increase the costs of the party opposing costs.

[7]      In  my  view,  2B  is  the  appropriate  costs  categorisation  and  the  various schedule items on which basis the claim has been calculated are justified.   The proceedings were of average complexity, requiring counsel of skill and experience considered average in the High Court, and a normal amount of time was reasonably required to prepare for the matter.  Insofar as I can see, each step in respect of which costs have been claimed was taken.

[8]      PWI Limited is prima facie entitled to its costs.   It succeeded in opposing Ms Te Wani’s application to remove the caveat.   However, PWI Limited advanced four grounds in support of its case that it had a reasonable arguable case for the interest claimed by it under the sale and purchase agreement.   It failed on two of those grounds.

[9]      The correct approach for a party who has succeeded only partially, or where the parties have had equal success, has been discussed by the Court of Appeal in Packing In Limited  (in  liquidation)  (formerly  known as Bond Cargo  Limited)  v Chilcott.1  The Court noted as follows:

[5] In a case such as the present, where in broad terms each party has had similar success, we do not consider it helpful to focus too closely on the question which party has failed and which has succeeded. Costs in a case such as this should rather be based on the premise that approximately equal success and failure attended the efforts of both sides. To that starting point should be added issues such as how much time was spent on each transaction or group of transactions in issue, and any other matters which can reasonably be said to bear on the Court’s ultimate discretion on the subject of costs. In the end, as in all costs matters, the Court must endeavour to do justice to both sides, bearing in mind all material features of the case.

[10]     As  the  Court  noted,  success  or  failure  is  better  assessed  by  a  realistic appraisal of the end result, rather than by focussing on who initiated what step, and

the extent to which that step succeeded or failed.

1      Packing In Limited (in liquidation)(formerly known as Bond Cargo Limited) v Chilcott (2003)

16 PRNZ 869 (CA).

[11]     In the present case, approximately equal success attended the efforts of both Ms Te Wani and PWI Limited.  Ultimately, however, PWI Limited succeeded.  The end result is that it was able to resist Ms Te Wani’s application and show that there was a reasonably arguable case that it has the interest it claims.  The issues which occupied most attention at the hearing related to an analysis of the evidence, whether Ms Te Wani had at any stage agreed that the agreement should remain on foot, and what effect the banking of the deposit had, given Ms Te Wani’s contention that the agreement had been cancelled.

[12]     Looking at the matter in the round, PWI Limited succeeded on the most significant  issues  which  were  the  focus  of  much  of  the  hearing.    It  is,  in  my judgment, appropriate to allow costs in the sum of $5,000.  That sum is less than that claimed by it.   This recognises that Ms Te Wani succeeded on two of the grounds raised by PWI Limited, although I note that one of the issues on which PWI Limited failed was a legal issue on which Ms Te Wani made no submissions.

[13]     Accordingly, I order that PWI Limited is entitled to costs of $5,000 against the applicants, Ms Te Wani and Mr Rackley, together with its disbursements, namely the filing fee incurred in relation to the notice of opposition ($110), and the filing fee incurred in sealing the judgment ($50).  It follows that costs and disbursements of

$5,160 are ordered against Ms Te Wani and Mr Rackley.  The order is made against both on a joint and several basis.

Addendum

[14]     I  apologise  to  the  parties  for  the  delay  in  issuing  this  costs  judgment.

Unfortunately, Mr Collecutt’s application seeking costs was mislaid by the Registry

and there was a resulting delay in getting the file to me.

Wylie J