Thomson t/a Antique Jewellery v Lloyd

[2020] NZHC 2770

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2019-404-2709

[2020] NZHC 2770

BETWEEN

GRAEME THOMSON T/A ANTIQUE JEWELLERY

Appellant

AND

ARTESHAR MAI-RAY LLOYD

Respondent

Hearing:	On the papers
Judgment:	22 October 2020

COSTS JUDGMENT OF DUFFY J

This judgment was delivered by me on 22 October 2020 at 11:00 am pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Solicitors:

Neilsons Lawyers, Onehunga Legal Vision, Auckland

Greg Jones, Barrister, Auckland

THOMSON T/A ANTIQUE JEWELLERY v LLOYD [2020] NZHC 2770 [22 October 2020]

[1]    In my decision of 8 July 2020 I awarded costs in the sum of $8,671 in favour of the appellant, Mr Thomson.1 This sum represents scale costs with a 50 per cent reduction to reflect that Mr Thomson was only partially successful in his appeal against a decision of Judge Mathers declining to order further and better discovery.

[2]    The respondent, Ms Lloyd, has since filed a memorandum disputing the calculation of scale costs, as contained in my decision of 8 July, and seeks that I recall that decision. More specifically, Ms Lloyd says the appellant erred by calculating scale costs with reference to the time allocations set out in schedule 3 of the High Court Rules 2016 (the Rules) for full appeals, rather than the relevant allocations for interlocutory matters. The respondent also submits that the appellant should not be entitled to costs for the item in schedule 3 entitled “preparation of case on appeal” as the appellant did not prepare the common bundle or a document entitled “points on appeal”. Further, the respondent says the appellant claimed costs for a half day hearing when the hearing only took a quarter of a day. As a result, the respondent says my judgment ought to be recalled and the costs award reduced to $5,208.

[3]    The appellant, on the other hand, submits that scale costs were calculated correctly and that the costs award was both fair and reasonable.

Discussion

[4]    In short, I do not see any reason to recall or alter my decision of 8 July. My reasons for this follow.

[5]    The respondent contends the appellant incorrectly calculated scale costs by utilising the time allocations for appeals rather than those for an interlocutory application. The respondent says that as the costs in the District Court were calculated on the basis the matter was an interlocutory application, it ought to be classified in the same way in the High Court. This position cannot be correct. The matter was indeed an interlocutory application in the District Court, but on appeal to this Court, it in fact became an appeal and should be treated as such for costs purposes. Thus, I see no error on the part of the appellant in this respect.

1      Thomson T/A Antique Jewellery v Lloyd [2020] NZHC 1620, 8 July 2020.

[6]    I also see no error by the appellant in claiming costs for preparation of the case on appeal, as permitted by schedule 3 to the Rules. Although the appellant did not prepare the common bundle or file a document entitled “points on appeal” this does not mean the appellant did not in fact prepare for the case on appeal. The Court has no real means of determining the work done toward each step in any proceeding and is entitled to rely on submissions from counsel as to their entitlement to scale costs.2 There is no list of tasks that must be undertaken to allow a party to claim costs for preparation of the case on appeal, and in the absence of any reason to enquire into the work carried out by counsel for the appellant I can see no reason to disallow the claim for scale costs relating to preparation of the case on appeal.

[7]    Lastly, the hearing did indeed run for approximately half a day, commencing at 11:45am and ending around about 4:00pm. Therefore, the half day allocation claimed by the appellant is entirely appropriate.

[8]    Thus, the misgivings raised by the respondent are entirely without merit and I see no need to recall or alter my decision of 8 July in any respect. For completeness, I note that the arguments raised by the respondent, even if successful, would have struggled to support a claim for recall. The decision to recall is discretionary and is not an opportunity to re-open substantive matters already decided. Particularly, recall does not extend to putting forward further arguments that could have previously been raised.3 The appellant, when filing its costs memorandum, annexed a schedule of the scale costs it sought. The respondent, when filing its memorandum in response could have raised these issues, rather than wait to file a memorandum after the matter of costs had already been determined, extending the time taken to resolve the matter.

[9]    The respondent had the opportunity to address the question of costs sought by the appellant and failed to exercise this opportunity. Now that its arguments against an award of costs have been rejected it cannot advance additional arguments challenging the quantum sought by the appellants. The time to do that was in the original submissions the respondent filed against a costs award.

2      Boyd v Connolly [2016] NZHC 2070.

3      Nottingham v Real Estate Agents Authority [2017] NZCA 145 at [11].

[10]   The    respondent’s    application    for    recall    of    the   costs    decision    and reconsideration of the quantum of costs awarded is denied.

Duffy J