TSB Bank Ltd v Dollimore (No 2) - [2016] NZHC 253

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-1779 [2016] NZHC 253

IN THE MATTER
of Section 348 of the Property Law Act

2007

BETWEEN

TSB BANK LIMITED Applicant

AND

DARRYLE DENISE DOLLIMORE First Respondent

DARRYLE DENISE DOLLIMORE and TRISHUL TRUSTEES LIMITED Second Respondents

On the papers

Counsel:

J Carnie for applicant
M J Utting for first respondent
T Juneja for second respondents

Judgment:

24 February 2016

JUDGMENT No 2 (COSTS) OF PALMER J

This judgment was delivered by me on 24 February 2016 at 3 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: Clendons, Auckland (J Carnie) Utting Law, Auckland
Singhs Lawyers, Auckland

TSB Bank Limited v Dollimore [2016] NZHC 253 [24 February 2016]

Summary

[1] In a judgment of 11 December 2015 I declined an application by TSB Bank Ltd (TSB) for an order, against Ms Dollimore and Trishul Trustees Ltd (the trustees), setting aside a disposition of property. Ms Dollimore and the trustees want costs on a 2B basis. TSB only wants to pay on a 2A basis to Ms Dollimore and nothing to the trustees. I outline the law relating to time bands for costs and apply it. I order costs on a 2A basis to Ms Dollimore and half of a 2A basis to the trustees.

The Law Relating to Banding Decisions

[2] A fundamental principle is that costs follow the event1 – meaning that a losing party pays to the winning party a contribution towards their legal costs. Rule
14.1 of the High Court Rules is the overriding rule in relation to costs and, subject to qualification by more specific rules, provides that all matters are at the discretion of the Court.

[3] An award of costs “should reflect the complexity and significance of the proceeding” (r 14.2(b)) assessed using the categories of complexity and time bands provided in the High Court Rules. There are three categories and three bands.

[4] Here, the parties agree that these are category 2 proceedings under Rule 14.3: of average complexity requiring counsel of skill and experience considered average in the High Court. The parties disagree about whether band A or B applies in terms of r 14.5 and Schedule 3 of the Rules. TSB and the trustees disagree about whether costs should be payable at all.

Time Bands

[5] Rule 14.5(2) provides:

(2) A determination of what is a reasonable time for a step under subclause (1) must be made by reference—

(a) to band A, if a comparatively small amount of time is considered reasonable; or

1 Rule 14.2(a) of the High Court Rules and Manukau Golf Club Inc v Shoye Venture Ltd [2012]

(b) to band B, if a normal amount of time is considered reasonable; or

(c) to band C, if a comparatively large amount of time for the particular step is considered reasonable.

[6] The assessment is of each step – so a different band may apply to different steps of a proceeding.2 The assessment is…

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.

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Details

Case: [2016] NZHC 253
Decision Date: 24 February 2016

CaseChat Overview and Summary

In the matter of a section 348 application brought by TSB Bank Ltd against Darryle Denise Dollimore and Trishul Trustees Limited, the High Court was required to determine the appropriate costs order in the context of the proceedings. The case revolved around an application by the bank to set aside a disposition of property, which was ultimately declined. The respondents sought costs on a 2B basis, while the bank argued for a 2A basis to the first respondent and no costs to the second respondent. The court needed to determine the appropriate time band for the proceedings, given the limited scope and straightforward nature of the legal and factual issues.

The court assessed the complexity and significance of the proceeding and determined that the proceedings were of average complexity, falling under category 2 of the High Court Rules. The key issue was whether the time taken by the parties' counsel fell under band A or B. Band A was considered appropriate for the first respondent's counsel, as the issues were very confined and straightforward. In contrast, the second respondent's counsel required substantially less time than band A, warranting a reduction to half of the relevant steps under band A.

Following the assessment, the court ordered costs on a 2A basis to the first respondent and half of a 2A basis to the second respondent. This decision was based on the objective assessment of the reasonable time required for each step of the proceedings, considering the limited scope and straightforward nature of the issues involved.

This judgment highlights the importance of a thorough assessment of the complexity and time bands when determining costs in High Court proceedings. It demonstrates the need for an objective evaluation of the reasonable time required for each step, taking into account the nature and scope of the issues presented.

Orders