Tugaga v Westend Painters Limited
[2017] NZHC 2475
•10 October 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2016-404-2294
CIV-2016-404-3008 [2017] NZHC 2475
BETWEEN FIONA TUGAGA
Appellant
AND
WESTEND PAINTERS LIMITED First Respondent
LEE TERRENCE DONALD Second Respondent
Hearing: On the papers Counsel:
DA Cowan for appellant
SJ Neville for respondentJudgment:
10 October 2017
JUDGMENT OF FITZGERALD J [As to costs]
This judgment was delivered by me on 10 October 2017 at 2:30 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: DA Cowan, Auckland
Ellis Gould, Auckland
Tugaga v Westend Painters Limited [2017] NZHC 2475 [10 October 2017]
Introduction
[1] In my substantive judgment dated 1 September 2017,1 I dismissed the appellant’s appeal, and quashed the District Court judgment on the (scaffolding) counterclaim, and entered judgment in favour of the first respondent for a sum slightly lower than in the District Court. I also upheld the first respondent’s cross- appeal on the question of interest.
[2] At the conclusion of my judgment, I indicated my preliminary (but non- binding) view that costs ought to follow the event in the ordinary way, on a 2B basis. This view was given in the hope of encouraging the parties to reach agreement on costs, without further costs being incurred arguing about costs. Unfortunately, the parties have not been able to agree on costs and memoranda have been filed.
Submissions
[3] Only the first respondent seeks costs, there being no separate claim advanced by the second respondent. Save for one step in the proceeding, the first respondent seeks costs on a Category 2B basis. Some adjustments are proposed to time allocations for particular steps, to reflect the particular facts of this case.
[4] The exception referred to in the preceding paragraph is that the first respondent seeks costs in relation to step 56 of sch 3 to the High Court Rules 2016 (the time allocation for the preparation of written submission on an appeal) on a band C basis (i.e. rather than band B), though reduced from the allocated time for band C of 6 days to 4 days.2
[5] Ms Neville, for the first respondent, submits that given the scope of the appeal issues and the volume of materials file on appeal, allocating costs to this particular step on a band C basis is appropriate.
[6] Mr Cowan, for the appellant, responsibly accepts that costs ought to follow the event (in terms of costs being awarded to the first respondent), and that there is
1 Tugaga v Westend Painters Ltd [2017] NZHC 2130.
2 The time allocation under band B is 3 days. Accordingly, the proposed time allocation of 4 days sits somewhere between bands B and C.
no good reason to depart from that general principle in this case. However, while in agreement that the proceedings are appropriately categorised as Category 2 for cost purposes, Mr Cowan submits that not all steps should be categorised as band B for cost purposes, and opposes the first respondent’s submission that the preparation of submissions on appeal ought to be determined on a band C basis.
Analysis
[7] I agree with the parties that the proceeding is appropriately categorised as a
Category 2 proceeding.
[8] Save for those matters addressed at [10(e)] below, I am also satisfied that it is appropriate to award costs for each step on the basis of band B.
[9] While I accept that the appeal before me, at least initially, covered a wide range of matters, claims and evidence, I am not satisfied that this justifies an uplift to Band C in respect of Step 56, the preparation of submissions on appeal. Whilst the matters under appeal were wide-ranging, they were not particularly complex, and counsel for the first respondent had also appeared for the first respondent in the District Court hearing. It can therefore be presumed that both the first respondent and counsel were very familiar with the documentary materials and the arguments being made on appeal.
[10] In relation to the others steps set out in the Schedule B to the memorandum filed on behalf of the first respondent:
(a) There is no dispute in relation to Step 53, which is awarded on a band B basis.
(b)In relation to Step 11 (filing memorandum for conference), as that was a joint memorandum, I accept Mr Cowan’s submission that the allocation of 0.4 days on a band B basis should be reduced by half (being 0.2 days at band B).
(c) In relation to Step 32 (preparation of list of issues, authorities and common bundle), there is no dispute that this be allocated on a band B basis, at 0.25 days. However, there appears to be an arithmetical error in the Schedule attached at “B” to the first respondent’s memorandum, where a total amount of $1,115.00 is claimed. As noted in the schedule attached to the appellant’s costs memorandum, this should be an amount of $557.50.
(d) As noted, for Step 56, I consider that the time allocation on a band B
basis of 3 days is sufficient in this case.
(e) There is no dispute between the parties that a second allocation for Step 56, for preparation of written submissions on the scaffolding appeal, at 1 day is appropriate (given the limited scope of that appeal). I agree with Mr Cowan that the appropriate means of arriving at this allocation is to allocate this step on a band A basis (to reflect the limited scope of this particular step), rather than a reduced band B allocation.
(f) Again, there is no dispute between the parties in respect of Step 57 (appearance at hearing), which is allocated on a band B basis for 1.25 days.
[11] It follows that I accept that costs in relation to the appeal ought to be awarded to the first respondent in accordance with the schedule attached to the appellant’s costs memorandum.
[12] The first respondent has also sought costs in relation to its memorandum as to costs. In the ordinary course, given the appellant had not engaged on the first respondent’s costs proposals prior to the memorandum being filed, I would have been minded to award those costs. However, in the event, given those alterations to the costs sought by the first respondent set out above, I consider that costs ought to lie where they fall on the costs memoranda.
[13] There is accordingly a total costs and disbursements award in favour of the
first respondent of $13,883.00.
S Fitzgerald J
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