Torbay Holdings Limited v Napier
[2015] NZHC 3374
•23 December 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2012-404-007660 [2015] NZHC 3374
BETWEEN TORBAY HOLDINGS LIMITED
First Plaintiff
TORBAY REST HOME LIMITED Second Plaintiff
AND
DUNCAN JOHN NAPIER AND SARA ANN NAPIER
First Defendants
DUNCAN JOHN NAPIER, SARA ANN NAPIER AND CHRISTOPHER JOHN DAVIS AS TRUSTEES OF THE NAPIER FAMILY TRUST
Second Defendants
Hearing: On the papers Appearances:
DPH Jones QC and AC Krzanich for Plaintiffs
DJ Napier for DefendantsJudgment:
23 December 2015
JUDGMENT OF WOOLFORD J
This judgment was delivered by me on Wednesday, 23 December 2015 at 3:00 pm pursuant to r 11.5 of the High Court Rules 1985.
Registrar/Deputy Registrar
……………………………………
Solicitors: Sellar Bone & Partners, Auckland
Counsel: DPH Jones QC, Auckland
Copy to: Duncan Napier
TORBAY HOLDINGS LTD & Anor v NAPIER & Ors [2015] NZHC 3374 [23 December 2015]
Introduction
[1] On 9 October 2015, I issued judgment in favour of Torbay Holdings Ltd and Torbay Rest Home Ltd (the plaintiffs) against Mr and Mrs Napier, and the trustees of the Napier Family Trust (the defendants).1 In that judgment, I gave directions for filing costs memorandum if costs could not be agreed. They have not been agreed and costs memorandum have now been filed.
Submissions
[2] The plaintiffs seek costs on a 2B scale, with a few minor exceptions. However, they seek costs in addition to scale in respect of the first amended statement of claim, a s 130 notice, and additional preparation time. The plaintiffs also claim certification for second counsel. They also claim disbursements for expert witnesses, an accountant from Deloitte and a private investigator from Stroud
& Associates.
[3] In relation to the apportionment of costs, the plaintiffs submit that the costs and disbursements should be payable by each of the defendants jointly and severally.
[4] In relation to interest, the plaintiffs claim interest from 1 May 2012, a time by which all the defendants had received the money I found to be owed to the plaintiffs. Interest is sought at the prescribed rate of 5 per cent from 1 May 2012 to 9 October
2015.
[5] Although the defendants did not initially reply to contact from the plaintiffs in order to resolve costs, Mr Napier has now filed a costs memorandum on the defendants’ behalf.
[6] Mr Napier disputes a number of claimed steps in the proceeding, on various bases, as well as some claimed disbursements. He submits that the recoverable experts’ fees should be net of GST, and that only 50 per cent of Deloitte’s fees should be recoverable, as they only copied the calculations made by Mr Single, a director of the plaintiff companies. Further, Mr Napier also says that no justification is given
for 60 per cent of the fees from Stroud & Associates in that he visited parties not related to the plaintiffs or the cheques at issue.
[7] Mr Napier also disputes the claimed interest costs, as the plaintiffs have charged interest on the whole sum despite the court allowing a set off.
Costs
[8] Rule 14.2 of the High Court Rules sets out the principles applying to the determination of costs, including the basic principle that the party who fails should pay the costs of the party who succeeds, and that the determination of costs should be predictable and expeditious. The plaintiffs were successful, so prima facie they are entitled to costs in respect of the claim, as stated in the judgment.2
[9] I go through each challenged step in the proceedings in turn.
Step 11
[10] In relation to step 11, Mr Napier says that 0.4 days per memorandum and phone conferences is excessive as many of the phone conferences took less than
30 minutes, and the defendants have been unable to confirm the list of dates provided.
[11] 0.4 days is the standard time allocation for 2B costs in respect of this step. It is a well established principle of the New Zealand costs regime that the actual time and costs incurred are strictly irrelevant. There is no basis on which to challenge the
0.4 day allocation. The costs claimed are appropriate.
Step 34: appearances at hearing
[12] Mr Napier claims that this step has been miscalculated. The plaintiffs have claimed for 11.25 days at the rate of $1,990/day, and five days at $2,230/day, the change in daily rate being attributable to the change in the allowed daily rate under the costs schedule of the High Court Rules as of 1 July 2015.
[13] Mr Napier is correct that there is a miscalculation, in that 11.25 days at the old rate of recovery is $22,387.50. Further, the 1.25 days which are attributable to the separate Sandspit hearing is also calculated incorrectly, and should result in an end calculation of $2,487.50, not $2,228.75.
[14] Taking those errors into account, the calculation results in:
Hearing time Total
11.25 days (at $1,990/day)
$22,387.50
5 days (at $2,230/day)
$11,150.00
$33,537.50
Less $2,487.50 (1.25 days at $1,990/day)
$31,050.00
[15] I accept that the calculation provided by the plaintiffs is incorrect. The correct sum is $31,050.00, not $37,308.75.
Additional steps claimed (step 36): amended pleadings
[16] Mr Napier says that costs are not usually awarded for amended pleadings, and that pleadings are almost invariably amended by parties so this is simply receiving payment for the same stage twice.
[17] The plaintiffs say that its pleading was always going to be amended as a result of further enquiries and defence discovery, and that in a minute dated
30 October 2014, Lang J noted that the plaintiffs would likely amend their pleadings after further discovery. The plaintiffs also submit that the amended pleading was a substantially enhanced claim with a number of additional causes of action, on which the plaintiffs succeeded. They submit that it is within the discretion of the court to allow costs for an amended statement of claim, and that these circumstances warrant exercising that discretion.
[18] In New Zealand Sports Merchandising Ltd v DSL Logistics Ltd, an amended statement of claim was challenged because formal leave to amend was not sought,
and the amended statement of claim was therefore not pursuant to any permissible step.3 Priestley J allowed around half of the standard costs claim for filing a statement of claim in respect of the amended statement, to reflect that leave was not sought or given.
[19] In Wellington Regional Stadium Trust v Attorney-General, MacKenzie J allowed a claim for an amended statement of claim based on a substantive change to legislation following filing.4 His Honour stated that filing an amended statement of claim to deal with the amendment to legislation (although not earlier minor changes to the statement) was justified and helpful to the Court. An allowance of one day (under the old costs regime) was granted. Similarly in Greenpeace of New Zealand Inc v Minister of Energy and Resources,5 MacKenzie J stated that whether costs were available for an amended statement of defence was an analogous question to whether an amended pleading was necessary. The question to be assessed was whether the Court would be assisted by an amended statement of defence.
[20] From these cases, I consider it is clear that there is discretion for the courts to allow costs for an amended statement of claim, particularly where that claim is necessary, assists the court, or alters more than minor errors in the claim.
[21] In this case, it was foreshadowed that the plaintiffs would need to amend their statement of claim. The need to do so was driven by external reasons, primarily Mr Napier’s approach to discovery, rather than through the plaintiffs’ own negligence or delays. The amended statement of claim was a significant update on the initial claim. The plaintiffs have claimed three days time allocation, as the standard 2B allocation for commencing a proceeding. I would allow a two day time allocation to reflect that the statement of claim was an amended one, requiring less
work than a fresh application.
3 New Zealand Sports Merchandising Ltd v DSL Logistics Ltd HC Auckland CIV-2009-404-5548,
19 August 2010.
4 Wellington Regional Stadium Trust v Attorney-General (2004) 17 PRNZ 429 (HC).
5 Greenpeace of New Zealand Inc v Minister of Energy and Resources [2013] NZHC 1110.
Additional steps claimed (step 36): inspection of supplementary documents
[22] Mr Napier says that the additional costs claimed for inspection of documents is also unnecessary, and the plaintiffs are effectively claiming twice for the same step, unless the volume of supplementary documents inspected were “exceptional”. The plaintiffs have not addressed this aspect of the additional costs sought in their submissions.
[23] In Rowmata Holdings Ltd (in liq) v Hildred, the plaintiffs sought additional
2B costs for inspection of documents discovered in a late affidavit.6 The defendants claimed that the 1.5 days allowed for the first inspection was sufficient, given that less than 400 documents were discovered. However, Williams J accepted the plaintiffs’ argument that, as well as volume, the fact that documents were discovered in a piecemeal manner incurred significant time and cost. This was backed up by an affidavit from one of the liquidators.
[24] In this case, no such argument has been put forward. I have no information about the discovery process, or the volume of documents inspected. Although I accept that it is possible that extra costs for inspection of supplementary documents can be warranted in some circumstances, I decline to grant costs for inspection of supplementary documents without further evidence of what that inspection entailed.
Additional steps claimed (step 36): preparation of written submissions on the issue of a constructive trust
[25] Written submissions on the issue of whether a constructive trust was an appropriate remedy in this case were requested by the Court in a minute following the hearing. Mr Napier disputes the validity of costs for preparing these submissions, as the issue was “not a matter of formal application” and therefore “incidental as opposed to integral”. The plaintiffs have not made specific submissions in relation to this aspect of their claim.
[26] I consider that costs in respect of the additional constructive trust submissions
requested by the Court were essential to a major plank of the plaintiffs’ case, being
6 Rowmata Holdings Ltd (in liq) v Hildred [2014] NZHC 3257.
ultimately the basis on which a significant remedy was granted to the plaintiffs. I consider that the plaintiffs should clearly be entitled to costs in respect of those submissions, which were substantial and focused on legal issues. The plaintiffs have claimed one day’s time allocation for preparation, which is less than the 1.5 days allowed for the preparation of written submissions under the costs schedule for band 2. I allow one day’s costs as appropriate.
Other additional costs sought
[27] The plaintiffs also seek additional costs for an application under s 130 of the Evidence Act, which was a notice by the plaintiffs to offer documents in evidence without calling witnesses. They also claim increased costs for preparing for the hearing. Neither of these has been challenged by Mr Napier.
[28] The s 130 application was dated 26 May 2015, and was intended, according to the plaintiffs, to streamline exhibits and generally reduce the number of witnesses. The evidence was mostly related to banking and financial documents in the possession of the defendants. The plaintiffs submit that the notice reduced trial costs overall, and that in a telephone conference Mr Napier did not object to the production of the classes of document set out in the notice with only one exception. The plaintiffs submit that the s 130 notice was beneficial to both parties, and was valuable to the court overall, which is said to be a factor in determining whether a time allowance should be made for steps not specifically mentioned in the High
Court Rules under item 36.7
[29] I agree that the s 130 application was helpful to the Court in saving time during the proceeding, and that costs in respect of that application would be warranted. The exercise of the discretion of this court under step 36 is appropriate.
[30] Under r 14.5(1)(b), if Schedule 3 to the High Court Rules does not apply, a time allocation can be determined by analogy with that schedule. The plaintiffs submit that the appropriate comparator is step 18, a notice to admit facts, for which
0.8 days is allocated on a 2B band. I accept this comparison, and correspondingly
7 The plaintiffs point to Trustpower Ltd v Commissioner of Inland Revenue [2014] NZHC 3072 in support of this submission.
allow costs in respect of the s 130 application, on a band 2 basis, allowing an allocation of 0.8 days.
[31] The plaintiffs seek a time allocation of ten days for additional preparation for the hearing, on top of the three days they are entitled to under step 33 of the High Court Rules. The plaintiffs submit that the allocation of time for preparing for a hearing under bands B or C (three days or five days) are both woefully inadequate. This is because the hearing took four weeks, and there was significant preparation needed both before and during the trial, including two full days when the court did not sit during the trial. The main issues in the trial were also factually related, meaning that the written briefs and evidence were substantial. They say that almost double the 13 days requested in this application were spent on preparation.
[32] The plaintiffs apply for increased costs under r 14.6(3)(a) of the High Court Rules on the basis that the time required by the party claiming costs would substantially exceed the time allocated under band C. They rely on Trustpower v Commissioner of Inland Revenue as authority for additional costs being awarded for
additional preparation time in substantial proceedings.8
[33] The procedure to be followed by an applicant seeking increased costs has been summarised by the Court of Appeal in Holdfast NZ Ltd v Selleys Pty Ltd:9
(a) Categorise the proceedings in terms of category;
(b)Work out a reasonable time for each step in the proceeding (with reference to the daily recovery rates and the time allocations);
(c) Apply for extra time for a particular step as necessary; and
(d)Only after the preceding three steps have been complied with should the applicant step back and consider the amount of costs it would receive by this process, and then argue for additional costs if it is
considered such can be justified.
8 Trustpower v Commissioner of Inland Revenue [2014] NZHC 3072.
9 Holdfast NZ Ltd v Selleys Pty Ltd (2005) 17 PRNZ 897 (CA) at [43] – [45] and [48].
(e) It is also established that in only the most exceptional of circumstances would an increase of 50 per cent above scale costs be warranted.
[34] As emphasised by McGechan on Procedure in ordering increased costs, “the courts uplift from scale, it is not a question of awarding a percentage of actual costs”.10
[35] In this case, the allocation for the proceeding generally is 2B. However, in this case the plaintiffs have submitted that they are entitled to an allocation exceeding band C categorisation. As noted in Scandle v Far North District Council, the question of whether band C is appropriate must be dealt with before increased costs can be considered.11 Band C allocation is appropriate where a comparatively
large amount of time is considered reasonable for that step.12
[36] In this case, the trial was long, at four weeks in length, although some of that was due to Mr Napier representing himself and other defendants. As noted by the plaintiffs in their submissions the content of trial substantially dealt with the factual allegations against Mr Napier, which were complex and involved significant amounts of evidence from witnesses, as well as substantial financial evidence. It would have taken a large amount of time to get to grips with the financial evidence and analysis presented at trial. In my view, a comparably large amount of time may well have been necessary to prepare for the trial, warranting 2C costs.
[37] Stepping back to assess, I consider that there is also justification to increase the allocation from five days. The proceeding ran over four weeks, and the number of witnesses and factual allegations to organise went beyond what would be expected even of a band C trial. Submissions, and affidavit evidence provided, were
extensive.
10 Andrew Beck and others McGechan on Procedure (online looseleaf ed, Brookers) at HR 14.6.02 (1).
11 Scandle v Far North District Council HC Whangarei CIV-2008-488-203, 31 March 2011 at [40].
12 High Court Rules, r 14.5.
[38] However, the claim for 13 days total preparation costs is over 50 per cent on
2C costs, which should only be warranted in the most exceptional circumstances. Stepping back and assessing, I consider that eight days time allocation in total is appropriate for step 33, an increase of three days.
[39] I therefore award costs on a 2C basis for step 33, with an increase of three days, and decline the application for an additional time allocation of 10 days for preparation for the proceeding.
Second counsel
[40] The plaintiffs say that costs of second counsel are warranted because the trial took place over four weeks, requiring logistical assistance to ensure the case ran properly, and there were extra burdens on the plaintiffs because Mr Napier represented himself and the other defendants. Further, some witnesses were interposed during the evidence of others, so managing and briefing witnesses required second counsel. During the trial identification of the exhibits in bundles was facilitated by second counsel as was the cross-referencing of evidence.
[41] Mr Napier states that there is no need to certify for second counsel, as Mr Jones QC could have conducted the case alone given his experience and seniority. He also states that the case was not so complex or lengthy that it required a second counsel, and that he was able to represent the defendants alone.
[42] In Nomoi Holdings Ltd, Chambers J held that the key question in determining whether to certify costs for second counsel was:13
… whether the nature of this proceeding, given the way the trial was conducted, was such as to justify requiring the losing party to contribute to the winning party’s cost in having a junior counsel present.
[43] The approach to determining whether second counsel should be granted is
always objective, and “is focused on the nature of the proceeding, not the actual counsel involved and how he or she or they choose to conduct the litigation”.14 It
13 Nomoi Holdings Ltd v Elders Pastoral Holdings Ltd (2001) 15 PRNZ 155 (HC) at [21].
14 At [21].
was emphasised both in Nomoi Holdings Ltd and in subsequent cases, that there will usually need to be some unusual feature to the litigation to warrant allowances for second counsel.15 However, in Wholesale Distributors Ltd v Songle Ltd, it was noted that the applicant did not need to show that the case was beyond the capabilities of the principal counsel, so long as it was sufficiently complex to justify certification for second counsel.16 This last principle sufficiently addresses the claim of Mr Napier that because Mr Jones is a Queen’s Counsel, he should not require assistance.
[44] The major question is whether the proceeding was sufficiently complex to warrant certifying for a second counsel. The trial extended over four weeks, and the claim was legally complex insofar as it required the application of established legal principles to complex and unclear factual circumstances. As acknowledged by the plaintiffs in their submissions, the trial itself focused primarily on establishing those factual circumstances surrounding Mr Napier’s misappropriation of money. To demonstrate the factual circumstances surrounding Mr Napier’s misappropriation, a significant amount of evidence was adduced, including a substantial number of witnesses.
[45] In my view, the nature of the proceeding was of such complexity that second counsel costs were warranted. The length of the proceeding would undoubtedly have increased if Mr Jones QC had been required to undertake the responsibilities of junior counsel in addition to his own. From my position, Ms Krzanich contributed to the trial’s efficiency, and the particular nature of this fact-centred trial required two counsel present. I certify for appearances by second counsel.
Disbursements
[46] Disbursements are governed by r 14.12, which states:
(1) In this rule, disbursement, in relation to a proceeding,—
(a) means an expense paid or incurred for the purposes of the proceeding that would ordinarily be charged for separately
from legal professional services in a solicitor’s bill of costs;
and
15 See Nomoi Holdings Ltd, above n 13, at [19], and ZYXCBA Developments Ltd v Auckland
Council [2015] NZHC 2224 at [16].
16 Wholesale Distributors Ltd v Songle Supermarket Ltd [2015] NZHC 809 at [8].
(b) includes—
(i) fees of court for the proceeding:
(ii) expenses of serving documents for the purposes of the proceeding:
(iii) expenses of photocopying documents required by these rules or by a direction of the court:
(iv) expenses of conducting a conference by telephone or
video link; but
(c) does not include counsel’s fee.
relevant issue, in relation to a disbursement, means the issue in respect of which the disbursement was paid or incurred.
(2) A disbursement must, if claimed and verified, be included in the costs awarded for a proceeding to the extent that it is—
(a) of a class that is either—
(i) approved by the court for the purposes of the proceeding; or
(ii) specified in paragraph (b) of subclause (1); and
(b) specific to the conduct of the proceeding; and
(c) reasonably necessary for the conduct of the proceeding; and(d) reasonable in amount.
(3) Despite subclause (2), a disbursement may be disallowed or reduced if it is disproportionate in the circumstances of the proceeding.
[47] Mr Napier challenges the disbursements for:
(a) The High Court filing fee for the amended statement of claim;
(b)The contribution toward photocopying, scanning discovery documents, courier fees and miscellaneous office charges;
(c) Photocopying and binding charges and delivery charges in respect of the trial bundles; and
(d) Transport costs.
[48] The defendants also challenge the correct sums payable to Deloitte and
Stroud & Associates.
[49] The fee for filing an amended statement of claim is an accepted cost under the High Court Rules, in r 14.12(1)(b)(i). I have allowed costs in respect of the filing of the amended statement of claim above, and there is no basis on which to not allow the claim for the filing fee also. This disbursement is allowed.
[50] The “travel costs” which are objected to by Mr Napier are described by Torbay as the costs of accompanying summons to witnesses. That appears to also be an accepted cost under r 14.12(1)(b)(ii), as an expense of serving documents for the purposes of the proceeding and there also seems to be no basis to contest that sum.
[51] Similarly, the photocopying and binding charges for the preparation of trial bundles are accepted disbursements under r 14.12(1)(b)(iii), as an expense of photocopying documents required by these rules or by a direction of the court. I accept the disbursement as claimed. Although the costs claimed are high, I have seen the trial bundles prepared. A number of A3 spreadsheets were prepared allowing close examination of the relevant financial statements of the various entities involved. The case required close examination of those documents. I accept the costs provided by the plaintiff are the reasonable and necessary costs of photocopying and preparing those bundles. However, that rule does not appear to me to require the delivery of those bundles to be included in the accepted disbursement. I am not clear why the delivery cost $138.53. That sum is not approved.
[52] The next cost objected to is the contribution toward photocopying and scanning discovery documents, courier fees and other office charges. It is well established that photocopying necessary and specific to the litigation is allowed as a disbursement.17 However, equally it can be said that the principle is that matters of office overhead usually absorbed by a party’s solicitors will not be recoverable.18
Photocopying costs would generally need to be shown to be necessary and specific to the litigation, or to be required by the High Court Rules.
[53] The general cost of $2000 which is requested is clearly an approximation. The description given by Torbay is “contribution toward photocopying and scanning discovery documents, courier fees and miscellaneous office charges”. Of those, I would be prepared to say that photocopying discovery documents could be
appropriately recoverable, but courier fees and office charges may not be.
17 Mawhinney v Waitakere City Council HC Auckland CIV-1999-404-001850, 26 September 2007;
Wynn Williams & Co v Kain [2012] NZHC 287 at [19].
18 Todd Pohokura Ltd v Shell Exploration NZ Ltd HC Gisborne CIV-2006-485-1600, 1 July 2011 at
[61].
[54] In Affco New Zealand Ltd v Anzco Foods Waitara Ltd (No 2), a percentage fee approach called a service fee was rejected.19 The Court said:
[15] I am not prepared to make an order in terms of r 48H that a legitimate disbursement is Bell Gully's 2.5 percent service charge is a legitimate basis for charging disbursements. Sub-rule (1) defines what disbursements are in relation to a proceeding. They are ‘expense’ payable and ‘incurred for the purposes of the proceeding’. A service charge as such is not an expense payable or incurred for the purpose of a proceeding in the sense that it is not adequately or appropriately identified as such. By its very nature, a percentage fee may or may not involve actual expenses paid or incurred. Because the Rules authorise only reimbursement of expenses paid or incurred for the purpose of the proceedings, a percentage charge cannot, in my view, be justified by r 48H. Nor in my view does 48H(2) assist the plaintiff. While the disbursements that may be included in the costs award are broadly described there, they must still in my view comply with the definition of disbursement in r 48H(1)(a). The examples given in r
48H(1)(b) reinforce my view. They are illustrations of actual expenses incurred.
[55] Although under a previous iteration of the costs regime, the reasons applied by the Court in Affco have prevailed under the current rules.20 Given that principle, I consider the $2000 general charge to be inappropriate. While not expressed as being a service fee, it has some elements in common insofar as it also involves only a general estimate of expenses without specific detail. Although some of the claim could be validly claimable costs, there is no way to ascertain how much is appropriate.
[56] I decline to allow the $2000 charge for a contribution to photocopying and other miscellaneous office charges, as it has insufficient particulars.
[57] Finally, I turn to the challenged expert witness costs. Expert witness costs are within the definition of a disbursement, but as they are not a specified category of disbursement under r 14.12(1)(b), they need to be approved by the court under r 14.12(2)(a)(i).21 The court has a discretion to grant such approval if the following
criteria are met:
19 Affco New Zealand Ltd v Anzco Foods Waitara Ltd (No 2) (2005) 17 PRNZ 676 (HC).
20 See Sax v Dempsey Wood Civil Ltd [2013] NZHC 1126 and Opus International Consultants Ltd v Colac Bay Vision Ltd [2015] NZHC 2702.
21 Auckland Waterfront Development Agency Ltd v Mobil Oil New Zealand Ltd [2015] NZHC 470 at [32].
(a) the disbursement is specific to the conduct of the proceeding; and
(b)the disbursement was reasonably necessary for the conduct of the proceeding; and
(c) the disbursement is reasonable in amount.
[58] The expert witness used was Mr Weir from Deloitte. A team from Deloitte attempted to put together the relevant financial information relating to Mr Napier’s misappropriation in a logical manner, across various spreadsheets. Some of this work had already been partially done by one of the directors of the plaintiff companies, Mr Single, while investigating Mr Napier’s conduct. Torbay says that this was essential evidence at trial, was comprehensive and was the key document at the trial. Torbay therefore claims the full fee paid to Deloitte for this work.
[59] Mr Napier says in his submissions that the expert fees should be exclusive of GST. He also submits that only 50 per cent of the Deloitte fees should be recoverable, as there was little opinion offered by Deloitte and they primarily copied out Mr Single’s analysis.
[60] As stated in McGechan on Procedure, a party is entitled to recover the actual fees and expenses of its expert witnesses provided they meet the relevant criteria.22
The practice is for the full invoice to be recoverable. If Mr Weir’s evidence meets the relevant criteria – being reasonable in amount, reasonably necessary for the proceeding, and specific to the conduct of the proceeding – it may be recovered in full. However, although costs between parties are GST neutral,23 if the amount actually paid is relevant in determining the award of costs then if the company is GST registered and would be entitled to claim the GST portion of fees rendered back in GST input credits, then GST must be deducted as it would otherwise be an over
recovery.24 I therefore agree that, as both Torbay companies are likely to be GST
22 Andrew Beck and other McGechan on Procedure (online looseleaf edition, Westlaw) at
[HR14.12.01(4)].
23 Burrows v Rental Space Ltd (2001) 15 PRNZ 298.
24 Suttie v Bridgecorp Ltd HC Auckland CIV-2006-404-3667, 8 December 2006.
registered, the GST portion of the invoice should be deducted from the disbursement sums claimed.
[61] In my view, Mr Weir’s evidence meets the test for claiming a disbursement generally. Although a large amount of the analysis was undertaken by Mr Single, the spreadsheets in an easily readable form were used throughout the proceeding and were very helpful to conducting the overall analysis when writing the judgment. Having looked at the invoices provided, although it would be preferable for the invoices to have set out the hours spent on each task rather than just an overall summary of the tasks completed and the fee, I consider that the disbursements were reasonable in amount. The detail given of the tasks completed is sufficient to show that work done was significant. I allow the claim for the Deloitte fees in full, minus GST.
[62] The other expert fees claimed are from Stroud & Associates, who are a private investigator firm. Mr Napier says that no justification is given for why only
60 per cent of the total Stroud fees are claimed, and notes that Mr Stroud admitted in court that he visited parties which were not related to either the plaintiff companies or the cheques at issue. He also says that the entire investigation undertaken by Mr Stroud was not integral to the plaintiffs’ case. Mr Napier again highlights that GST is a recoverable cost, as the plaintiffs are a GST registered entity and that GST should therefore not be included.
[63] The plaintiffs submit that Stroud & Associates were used to serve documents on Mr Napier (which was a higher expense because of the rural address for service), as well as to carry out enquiries with third party suppliers which formed the basis of Mr Stroud’s evidence at trial, to oversee Mr Napier’s inspection of the basement premises at Torbay as per an agreement between the parties, and Mr Stroud’s attendances on witnesses leading up to trial and his own appearance as a witness. The work is said to have been necessary to the operation of the proceeding and particularly in identifying suspect transactions with third parties. There is no reason given as to why only 60 per cent of the fee is claimed.
[64] As stated above, as long as Mr Stroud’s attendances meet the relevant tests for a disbursement under the High Court Rules, they can be claimed in full. GST should be deducted, as per the analysis above.
[65] In this case, Mr Stroud’s invoices are detailed. The work that he has undertaken all appears to be specific to the conduct of this proceeding. To the extent that he has admitted that any of it was not specific to this proceeding, this likely accounts for the fact that Torbay has already reduced the relevant invoices by 40 per cent, by only claiming 60 per cent of them. Further, insofar as part of his fees are for serving Mr Napier, they are taken to be approved under the rules as an expense of serving documents for the purposes of the proceeding under r 14.12(1)(b)(ii). I consider that the other investigations undertaken were also reasonably necessary, as it was important to ascertain what third party payments from Mr Napier were legitimate and which were not. Mr Stroud’s costs are reasonable and proportionate.
[66] I also accept the claim for recovery of 60 per cent of Stroud & Associate costs, to be calculated after removing GST from the relevant invoices.
Interest
[67] The plaintiffs also claim interest on the judgment sums. Under s 87 of the Judicature Act 1908, the Court has discretion to award interest, including pre- judgment interest. The plaintiffs have asked for judgment to run from 1 May 2012, in recognition of the fact that assessing interest from the date the cause of action arose would cause substantial difficulty in calculating the correct sums for each defendant who are liable under differing causes of action.
[68] In this case, it is clear that interest on the judgment sums is appropriate. I accept that using the 1 May 2012 start date is appropriate. That interest should run from 1 May 2012 to judgment date, 9 October 2015. The prescribed rate of interest under the Act is five per cent.
[69] Although Mr Napier has complained that the interest sums claimed by the
plaintiffs do not take into account “set offs” which I ordered, the judgment sums
calculated do take into account the money which was being held by the plaintiff companies for Mr Napier and the Napier Family Trust.
[70] The interest owed is therefore as follows:
Defendant Principal owed
Interest owed
Total judgment debt
Mr Napier
$1,401,351.20
$241,301.16
$1,660,652.36
Mrs Napier
$720,310.53
$124,031.55
$844,342.08
Napier Family Trust
$95,735.08
$16,484.79
$112,219.86
Aggregate amount recoverable against all three defendants
$1,440,288.56
$248,005.85
$1,706,294.41
Conclusion
[71] In respect of the scale costs, the plaintiffs are entitled to costs on a 2B basis, apart from step 33 for which I have allowed increased costs from a 2C basis, resulting in an eight day allowance. I have allowed the claim for second counsel, and recalculated the figures for appearances at the hearing. This brings the total scale costs to $103,887.00.
[72] I have accepted the plaintiffs’ submissions that they are also entitled to costs for preparing the amended statement of claim, the s 130 notice, and written submissions on the issue of whether a constructive trust exists. In total, the additional costs that I have granted total $7,802. This incorporates:
(a) $3,980 for preparing the amended statement of claim, at an allocation of 2 days at $1,990/day;
(b) $1,592 for preparing the s 130 notice, at an allocation of 0.8 days at
$1,990/day.
(c) $2,230 for preparing additional written submissions, at an allocation of one day at $2,230/day.
[73] The total costs judgment is therefore for the sum of $111,689. [74] The following disbursements are accepted:
(a) Filing fees of $1549.20. (b) Service fees of $103.50.
(c) Transport costs of accompanying the summons to witnesses of $220.
(d)Photocopying and binding costs for preparation of the trial bundle, in the sum of $4,388.56.
(e) Deloitte’s fees, exclusive of GST.
(f) 60 per cent of Stroud & Associate’s fees, exclusive of GST.
[75] The plaintiffs are entitled to interest on the judgment sum, as calculated above. The final judgment sums for Mr Napier, Mrs Napier and the trustees of the Napier Family Trust are as follows, respectively:
(a) $1,660,652.36; (b) $844,342.08; and (c) $112,219.86.
[76] The total aggregate judgment sum and interest recoverable is $1,706,294.41.
[77] The defendants, Mr Napier, Mrs Napier and the independent trustee, Christopher John Davis, are also jointly and severally liable for the costs sum of
$111,689 under r 14.4 of the High Court Rules.
……………………………….
Woolford J
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