Turner and Waverley Limited v Stanning HC Auckland
[2011] NZHC 1866
•13 December 2011
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2010-404-2268
BETWEEN TURNER AND WAVERLEY LIMITED Plaintiff
ANDANDREW DEREK STANNING AND PETER GORDON LEVER
Defendants
CIV-2010-404-2272
AND BETWEEN TURNER AND WAVERLEY LIMITED Plaintiff
ANDNESAU PTY LIMITED Defendant
CIV-2010-404-2292
AND BETWEEN TURNER AND WAVERLEY LIMITED Plaintiff
ANDNORTHSTAR ACCOUNTS PTY LIMITED
First Defendant
ANDANDREW DEREK STANNING AND PETER GORDON LEVER
Second Defendants
CIV-2010-404-2294
AND BETWEEN TURNER AND WAVERLEY LIMITED Plaintiff
ANDZENN PTY LIMITED Defendant
CIV-2010-404-2181
TURNER AND WAVERLEY LIMITED V STANNING AND LEVER HC AK CIV-2010-404-2268 13
December 2011
ANDROBERT ERNEST WEBBER AND DEBORAH JANE WEBER
First Defendants
ANDKERRIE ANNE SCHOOTS AND PIETER LAUURENCE SCHOOTS
Second Defendants
ANDDONALD MCMICHAEL AND RENEE LE GRANDE
Third Defendants
ANDWILLIAM STAPLES AND LYNETTE JONES, TONY PETER AND WENDY PETER
Fourth Defendants
CIV-2010-404-2256
AND BETWEEN TURNER AND WAVERLEY LIMITED Plaintiff
ANDKEN EDMONDS, SUE EDMONDS AND MARK EDMONDS
First Defendants
ANDSCOMARG INVESTMENTS PTY LIMITED
Second Defendants
ANDTRIED HARD PTY LIMITED Third Defendant
ANDBRETT SHEATHER, MARC WILSON AND ROBIN WALKER
Fourth Defendants
ANDSCOTT WILIAM EDMONDS AND MARGARET ALISON EDMONDS Fifth Defendants
CIV-2010-404-4372
ANDBRUCE GORDON AND CHRISTINE GORDON
Defendants
Hearing: 7 December 2011
Appearances: G P Blanchard for Plaintiff
S H Barter for Defendants
Judgment: 13 December 2011 at 11:00 AM
COSTS JUDGMENT OF ASSOCIATE JUDGE BELL
This judgment was delivered by me on 13 December 2011 at 11:00am
pursuant to Rule 11.5 of the High Court Rules.
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Registrar/Deputy Registrar
Solicitors:
CMS Legal (C Smith), Auckland – Email [email protected] Phillips Legal, Auckland – Email [email protected] Barter & Co., Auckland – Email [email protected]
W McCartney, Auckland – Email [email protected]
G Blanchard, Auckland – Email [email protected]
Copy for:
[1] This is a costs decision on the application by Turner & Waverley Ltd to set
aside the defendants’ appearances under r 5.49(5) of the High Court Rules.
[2] In my decision of 23 December 2010, I set aside the defendants’ protests to jurisdiction. I ordered the defendants to pay the plaintiff’s costs on a 2B scale, with disbursements to be approved by the Registrar. The parties have not been able to agree on costs and have filed memoranda. There have been delays in the memoranda being referred to me for decision.
[3] The applications in CIV-2010-404-2248, 2272, 2292 and 2294 were heard on
26 August 2010. The applications in CIV-2010-404-2256 and 2181 were heard on
20 September 2010. As the proceedings fall into two groups, which were processed separately (although they were the subject of one decision), that makes it convenient to allocate costs according to each group. The circumstances of the case do not make it suitable for a hindsight judgment that the cases might otherwise have been organised so that duplication could have been avoided.
Costs for applications heard on 26 August 2011
[4] For these cases I fix costs as follows:
Step Description Allocated Day Amount
4.10 Memorandum for case management conference
4.11 Appearance at case management conference
4.12 Preparing and filing interlocutory applications
4.14 Preparation for hearing
4.15 Appearance at hearing
.4 day $752
.3 day $564
1.5 days $2820
1 day $1880
1 day $1880
4.2 days $7896
[5] I have applied 1.5 days for preparation and filing the interlocutory applications on the basis that the time allowed for one application would be .6 of a day, and I have allowed an additional .3 of a day for each further application.
[6] I also award the plaintiff disbursements being the filing fees on each application - $2400.
Costs for applications heard on 20 September 2010
[7] I fix costs as follows:
Step Description Allocated Day Amount
4.10 Memorandum for case management conference
.4 $752
4.11 Appearance at case management conference
.3 $564
4.12 Preparation and filing interlocutory applications
.6 $1128
4.14 Preparation for hearing
1 day $1880
4.15 Appearance at hearing
1day $1880
3.3 days $6204
[8] There were two applications filed, but I have applied .6 as being .3 for each application, the core work having been done for the first application heard on
26 September 2010.
[9] I award disbursements on the two applications for the filing fees, totalling
$1200.
[10] In summary, for the applications heard on 26 August 2010, those defendants are to pay the plaintiff costs of $7896 and disbursements of $2400.
[11] For the applications heard on 20 September 2010 those defendants are to pay the plaintiff costs of $6204 and disbursements of $1200.
Security for costs application
[12] The parties’ memoranda have also addressed security for costs. There is agreement that the plaintiff should provide security for costs and that payment of security should be staged. This part of the decision applies to all the proceedings, including that against the Gordons (CIV 2010-404-4372).
[13] For staging, the parties have divided the work done on the cases between work done up until now (excluding the arguments as to the protests to jurisdiction) and the work from now on in preparation for trial and hearing. That division is convenient.
[14] Both parties put forward calculations as to likely costs, but they differ, especially on time allowances for particular steps. There is complexity here, because of the numbers of defendants. Inevitably there will be elements within each defendant’s case which are individual to that case and other aspects that are common to all defendants. It is not possible to establish exactly how much work will be common to all cases and how much will be individual to a particular case. For a security for costs application, precision is not required.
[15] For Stage 1, for work carried out to date, I allow $100,000 for costs awarded to the defendants. That is about 53 days at the Category 2 rate. I fix security for that as $67,000, applying a discount. From that I deduct the sum of $13,750 (already been paid by way of security for costs), leaving a balance for security of $53,250.
[16] The security for costs is to be provided by 16 March 2012. If it is not paid by then, all the plaintiff’s proceedings the subject of this minute will be stayed. If payment is not made by the end of March 2012, the defendants may apply to have
the plaintiffs’ claims struck out. Any such application should be referred to me in the first instance so that I can give directions for that application to be heard at short notice.
[17] For stage 2, costs are likely to be in the order of $130,000 allowing 70 days:
40 days for preparation, 20 days for the hearing and 10 days for second counsel. In addition there will be the likely costs of an expert witness on Australian law of
$30,000, likely costs of travel and accommodation for defendants coming from Australia and further disbursements of $12,000 giving a total of $172,000. I discount that to $115,000. The security of $115,000 is to be paid into court by the end of May 2012. If the security is not provided by that date, the proceeding is stayed. If the security for costs is not paid by 15 June 2012, the defendants may apply for an order striking out the proceeding. They will not require leave to make that application. The application should be referred to me in the first instance with a request for a telephone conference so that I may give directions for the application to be heard.
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Associate Judge R M Bell
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