Time v Fagalilo (costs) HC Wellington CIV 2008-485-540

[2010] NZHC 1100

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2008-485-540

IN THE MATTER OF     the Green Valley Samoan Assembly of God

Property Trust Board

BETWEEN  SINETI TIME Applicant

ANDLUAIVA FAGALILO Respondent

Hearing:         On Papers

Counsel:         R J Buchanan for Applicant

O Woodroffe for Respondent

Judgment:      30 June 2010

COSTS JUDGMENT OF RONALD YOUNG J

[1]      In these proceedings the applicant succeeded in its application that I dismiss existing trustees of the Green Valley Church Trust Board, appoint an interim trustee and give directions as to how the new trustee should be selected.  The applicant now seeks costs.

[2]      Firstly the applicant seeks increased costs.  The applicant says costs on a 2B

basis,  allowing  for  second  counsel  (also  the  subject  of  application)  amount  to

$36,160.  Actual costs were $44,237.59.

[3]      The respondent’s view is that there should be no increased costs order.  On the contrary he says costs should lie where they fall or be reduced costs.  If costs on

a 2B basis are awarded the respondent says they should total only $26,000.

SINETI TIME V LUAIVA FAGALILO HC WN CIV 2008-485-540  30 June 2010

[4]      I am satisfied that the applicant should have costs.  The applicant succeeded in its fundamental application which was the dismissal of existing trustees and the appointment of the Public Trustee as an interim trustee.  There is no basis for costs to lie where they fall or for there to be any form of reduced costs in this case.  As I remarked in my judgment the actions of the trustees could not be supported.  They effectively ignored the Trust Deed.  Mr Fagalilo was at the centre of such actions. Mr Fagalilo himself admitted he knew little or nothing of the trust and paid the Trust Deed, which was intended to guide his actions, little heed.   The evidence overwhelmingly established that the trustees were not acting according to the Trust Deed and that there was a fundamental breakdown requiring replacement of trustees.

[5]      Secondly, I am satisfied that the applicant should have a second counsel approved for costs purposes.  As the applicant said there was a significant amount of evidence provided late in this case which required the applicant to deal with on an urgent basis.  The case had a factual complexity.  Thus second counsel provided real and substantial assistance to the applicant.

[6]      Thirdly I am also satisfied that this is a legitimate case for increased costs. Although in the circumstances I consider only a moderate increase is required.  High Court Rule 14.6(3) provides as follows:

14.6     Increased costs and indemnity costs

...

(3)      The court may order a party to pay increased costs if—

(a)       the nature of the proceeding or the step in it is such that the time required by the party claiming costs would substantially exceed the time allocated under band C; or

(b)the party opposing costs has contributed unnecessarily to the time or expense of the proceeding or step in it by—

(i)        failing to comply with these rules or with a direction of the court; or

(ii)      taking  or  pursuing  an  unnecessary  step  or  an argument that lacks merit; or

(iii)      failing,  without  reasonable  justification,  to  admit facts, evidence, documents, or accept a legal argument; or

(iv)      failing, without reasonable justification, to comply with an order for discovery, a notice for further particulars, a notice for interrogatories, or other similar requirement under these rules; or

(v)       failing, without reasonable justification, to accept an offer of settlement whether in the form of an offer under rule  14.10  or  some  other  offer  to settle  or dispose of the proceeding; or

(c)the proceeding is of general importance to persons other than just the parties and it was reasonably necessary for the party claiming costs to bring it or participate in it in the interests of those affected; or

(d)some other reason exists which justifies the court making an order for increased costs despite the principle that the determination  of  costs  should  be  predictable  and expeditious.

[7]      I accept that in this case early in the dispute an attempt was made by the applicants to discuss and try and resolve the dispute.  That attempt was ignored by the respondent who acknowledged this in Court.

[8]      Further, there was some history of late filing of affidavits by the respondent. At times the affidavits were filed with exhibits in the Samoan language but without proper or any translation.   At other times during the course of the trial I allowed further affidavits to be filed on the condition of a translation of the Samoan documents.  This order was not complied with.  The hearing occupied longer than was necessary primarily because witnesses for the respondent were often unable to give direct answers to direct questions.  I refer to paragraph [19] of my judgment as an example of this.

[9]      A  number  of  somewhat  surprising  assertions  by  the  respondent  in  his evidence no doubt required the applicant to urgently seek contrary evidence.   An example includes the refusal of Mr Fagalilo to accept that the Green Valley Church had been affiliated with AOGNZ.

[10] Fourthly, I consider the proper amount of 2B costs ([2], [3]). I accept the applicant’s memorandum as to appropriate 2B costs is accurate save for one aspect. The difference between the appellant’s and respondent’s assessments is primarily the claimed allowance for the preparation of affidavits and the second counsel

allowance.    This  case  was  by  affidavit  evidence.    Proper  allowance  for  those affidavits is appropriate.

[11]     I am not however prepared to allow both the claim for the preparation for the hearing and as a separate item the plaintiff’s preparation of trial issues, authorities and other preparation.  I therefore deduct $4,000 from the $36,800 claimed by the applicant as appropriate 2B costs.   2B costs are therefore $32,800.   To reflect the matters previously mentioned I increase the 2B costs of $32,800 to $40,000.

[12]     In summary, therefore, the applicant/plaintiff will have costs in their favour in  the  sum  of  $40,000  plus  disbursements  as  allowed  by the  Registrar  for  this

proceeding.

Solicitors:

Ronald Young J

R J Buchanan, Buchanan Gray, PO Box 24057, Wellington, email: [email protected]

O Woodroffe, Woodroffe Law Partnership, PO Box 6505, Auckland email:  [email protected]