Upritchard v Hislop

[2014] NZHC 493

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2012-409-1366 [2014] NZHC 493

BETWEEN  EVAN JOHN UPRITCHARD Plaintiff

ANDWARREN MILLER HISLOP Defendant

Hearing:                   On the papers

Counsel:                  J M Moran for Plaintiff

D A Wood for Defendant

Judgment:                18 March 2014

JUDGMENT OF FOGARTY J As to costs

This judgment was delivered by me on 18 March 2014 at 4.00 p.m., pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors:           Meares Williams, Christchurch

Ian McNish, Kaiapoi

UPRITCHARD v HISLOP [2014] NZHC 493 [18 March 2014]

[1]      The substantive decision of this Court was delivered on 12 November 2011. In that decision the Court found in favour of the plaintiff and granted the mandatory injunction sought in the substantive proceedings.   The plaintiff filed for sealing a schedule of costs on a 2B basis which collected all of its attendances as itemised under the schedule and all the filing and hearing fees that it had paid.

[2]      These costs included an application for summary judgment by the plaintiff which was withdrawn, costs reserved, after Wylie J pointed out at the beginning of the hearing that, however the case is approached, there is an issue of fact to be resolved as to the content of a conversation between the parties of an informal conversation between the parties.

[3]      The  defendant  seeks  costs  in  respect  of  that  application  for  a  summary judgment.  The defendant has prepared its schedule of costs, including preparation of affidavits and preparation of written submissions.  Those two items were necessary anyway for the substantive hearing.   They amount to four days in all.   There is always, however, some duplication of time when work has to be reprepared for the trial.  Accordingly, it is just I think to reduce that time by one day, resulting in three days of costs prepared to oppose the application for summary judgment which, on any view, were going to be required anyway to defend the case.

[4]      A total  of  5.05  days  was  claimed  by  the  defendant.    Accordingly,  it  is appropriate that 2.05 days be allowed for defending the summary judgment at $1,990 per day. This is the sum of $4,097.95. This sum is payable by the plaintiff.

[5]      The plaintiff’s schedule of costs includes filing the interlocutory application for summary judgment, preparing written submissions in that regard, preparation by the applicant of a bundle for hearing, an appearance at the hearing of the defended application, a total of 2.95 days.  I note that the plaintiff now agrees the deletion of these items 22, 24, 25 and 26, totalling 2.95 days.

[6]      This reduces the total of 22.2 days to 19.25 hours at $1,990 per day, is the sum of $38,307.50, from which must be deducted the offsetting entitlement of the

defendant in the aforesaid sum of $4,079.50, leaving a balance of $34,228.00.  The plaintiff is entitled to a judgment of $34,228.00 for costs, plus disbursements.

[7]      It is not clear from the plaintiff’s disbursements whether or not it includes hearing fees for the abortive application for summary judgment.  Accordingly, the schedule  of  disbursements  are  approved,  except  for  item  3,  which  may  need adjusting to remove hearing fees for the application for summary judgment.