Teece v Veint - [2021] NZHC 1036

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CIV-2020-425-000073

[2021] NZHC 1036

UNDER the Land Transfer Act 2017

IN THE MATTER

of an application that a caveat not lapse

BETWEEN

DAVID JOHN TEECE

First Applicant

AND

HERITAGE PTC, LLC

Second Applicant

AND

LLOYD JAMES VEINT

Respondent

Hearing: On the papers

Counsel:

S J Mills QC and J Moss for Applicants

P F Whiteside QC and D M Jackson for Respondent

Judgment:

11 May 2021

JUDGMENT OF ASSOCIATE JUDGE PAULSEN ON COSTS

This judgment was delivered by me on 11 May 2021 at 10.30 am pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

TEECE v VEINT Costs Judgment [2021] NZHC 1036 [11 May 2021]

Dr Teece’s claim for costs

[1] The applicant (Dr Teece) applied to sustain a caveat lodged to protect a contractual easement over the respondent’s (Mr Veint) property at Glenorchy. By contract, Mr Veint had granted Dr Teece the right of access to use and, if necessary, extend an airstrip on Mr Veint’s land (Arcadia Station) in the event that after taking advice and researching the viability of an airstrip on his own land (Paradise Block) Dr Teece concluded this was not feasible.

[2] In a judgment of 9 March 2021, I made an order that the caveat shall not lapse pending further order of the Court.1 The facts giving rise to the application are fully set out in my judgment.

[3] As far as costs were concerned, I directed in my judgment that if counsel could not agree on costs they could file memoranda and I would determine the matter. Counsel were able to largely, but not completely, agree on the issue of costs.

[4] Dr Teece has claimed scale costs on a 2B basis. He also claims disbursements. I agree that it is appropriate to award scale 2B costs. I do not need to analyse that matter further as Mr Veint responsibly does not dispute that Dr Teece is entitled to scale 2B costs, nor does he take issue with most of the claimed disbursements.

[5]The areas of disagreement are limited to the following discrete matters:

(a)Dr Teece’s claim for costs of second counsel’s appearance at the hearing; and

(b)Dr Teece’s claim for expert witnesses’ expenses as a disbursement.

[6]I deal with each matter seriatim.

1 Teece v Veint [2021] NZHC 409.

Second counsel

[7] Dr Teece submits the claim for second counsel is justified as there was a considerable amount of evidence filed and second counsel had a significant role in obtaining the evidence and preparing submissions. It is noted also that Mr Veint had second counsel at the hearing.

[8] Parties may choose to have second counsel for a variety of reasons. They may derive considerable benefit from second counsel. That alone does not justify the losing party having to contribute to the winning party’s costs of having second counsel. So, it is not the case that because second counsel…

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.

Continue reading Teece v Veint

Details

AGLC: Teece v Veint [2021] NZHC 1036
Case: [2021] NZHC 1036
Decision Date: 11 May 2021

CaseChat Overview and Summary

The case involves an application by Dr Teece to sustain a caveat lodged to protect a contractual easement over Mr Veint's property at Glenorchy. The dispute concerns the reasonableness of the costs claimed by Dr Teece, including the fees of second counsel and expert witnesses. The hearing was conducted in the High Court of New Zealand, Invercargill Registry.

The court was required to determine whether the costs claimed by Dr Teece, including the fees for second counsel and expert witnesses, were reasonable and necessary. The primary legal issues were whether the costs for second counsel were justified and whether the expert witness fees and expenses were reasonable and necessary for the proceeding.

The court found that while the presence of second counsel may have provided benefits, it was not reasonably necessary for Dr Teece to be represented by second counsel at the hearing due to the nature and complexity of the proceeding. Therefore, the claim for second counsel's appearance at the hearing was not allowed. Regarding the expert witness fees and expenses, the court found that the evidence provided by the experts was specific to the proceeding and reasonably necessary. The court assessed the reasonableness of the expert witness fees and expenses, considering the time spent, hourly rates, and relevance to the proceeding. The court awarded Dr Teece $8,280 (including GST) for the expert witness disbursement claim in respect of Mr Dent’s evidence, reflecting 36 hours of work at $200 plus GST per hour.

The court awarded Dr Teece scale 2B costs amounting to $14,101 (excluding any allowance for second counsel) and reasonable disbursements of $10,920.04. The total sum awarded is $25,021.04. The court also corrected an error in the daily recovery rate claimed on behalf of Dr Teece, applying the correct hourly rate in calculating his scale costs entitlement.

Orders