Vincent v Mindel
[2013] NZHC 1654
•2 July 2013
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2010-404-6275 [2013] NZHC 1654
BETWEEN AVIONNE JOY VINCENT Plaintiff
AND COLIN DAVID MINDEL
and ALAN JOHN MANU WADAMS Defendants
Hearing: On the papers
Counsel: GJ Mercer for plaintiff
JE Tomlinson for defendants
Judgment: 2 July 2013
JUDGMENT OF ASSOCIATE JUDGE FAIRE [on costs]
This judgment was delivered by me on 2 July 2013 at 4:30pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: Gellert Ivanson, Auckland
McElroys, Auckland
VINCENT v MINDEL [2013] NZHC 1654 [2 July 2013]
[1] On 19 August 2011 I delivered judgment on the defendants’ application for orders for summary judgment and strike out of the plaintiff’s claim. In that judgment I ordered that summary judgment be entered in favour of the defendants.
[2] In my judgment I recorded the following in relation to costs:
[113] My preliminary view is that this is an appropriate case for an order
for costs to be made in the defendants’ favour based on Category 2
Band B and as if the matter were dealt with as a summary judgment application. I have not given counsel the opportunity of presenting
submissions on costs. For that reason, I reserve costs. If counsel are
unable to agree, memoranda in support, opposition and reply shall be filed and served at seven-day intervals. On receipt of the reply
memoranda the file shall be referred to me to consider the
appropriate position in relation to costs.
[3] Memoranda were filed by counsel. On 26 March 2013, I issued the following minute:
[1] The Case Officer who has responsibility for this file has delivered to me counsel’s memoranda on the question of costs. The last memorandum is that filed on behalf of the defendants on 26 March
2013.
[2] It is not clear to me what the precise position is in relation to the counterclaim. In particular, do the defendants wish to discontinue it or should I otherwise strike it out? Would counsel for the defendants advise what the defendants’ intentions are in relation to that matter. That has a bearing on how I approach the memoranda for costs that have been filed so far.
[4] The Case Officer who has responsibility for this file has provided me today with a notice of discontinuance in respect of the counterclaim.
[5] Before summarising the contentions of the parties, it is appropriate that I refer to the principles applicable in awarding costs.
[6] Rule 14.1 gives the Court a discretion to order costs in relation to a step taken in a proceeding. That discretion is generally to be exercised in accordance with the
specific rules contained in rr 14.2-14.10: Glaister v Amalgamated Dairies Ltd.1 In Mansfield Drycleaners Ltd v Quinny’s Drycleaning (Dentice Drycleaning Upper Hutt) Ltd2 the Court of Appeal said of the costs regime contained in what is now rr 14.2-14.10 that:
there is a strong implication that a Court is to apply the regime in the absence of some reason to the contrary
The test to be applied is entirely an objective and not a subjective one. The only reference which it is necessary to make towards actual costs is to be found in r 14.2(f), namely that an award of costs should not exceed the costs incurred by the party claiming the costs: Glaister v Amalgamated Dairies Ltd.3 These principles were endorsed by the Supreme Court4.
[7] Rule 14.2 lists the principles applying to determination of costs. Subrule (a) affirms the principle that the losing party should pay the costs to the successful party. Subrule (b) requires that the costs reflect the complexity and significance of the proceedings. By inference it refers to the categorisation of a proceeding which is provided for in r 14.3. Subrule (c) requires a consideration of each step for which costs are sought and an application of the daily rate having regard to the appropriate band which is to be applied after a consideration of r 14.5(2) and the Third Schedule to the High Court Rules.
[8] The defendants seek to recover costs and disbursements based on Category 2
Band B for the steps that have been taken in the proceeding. Save for three entries, there is no dispute concerning the quantification of the costs sought. The areas where there is a dispute relates to:
(a) The allowance for a counterclaim – 1.6 days
(b) The allowance for a list of documents – 1.5 days;
1 Glaister v Amalgamated Dairies Ltd [2004] 2 NZLR 606 at [19].
2 Mansfield Drycleaners Ltd v Quinny’s Drycleaning (Dentice Drycleaning Upper Hutt) Ltd (2002)
16 PRNZ 662 at 668).
3 Glaister, above n 1 at 610 [14].
4 Manukau Golf Club Inc v Shoye Venture Ltd [2012] NZSC 109.
(c) Inspection of documents – 1.5 days.
[9] The total cost claimed, based on the appropriate daily rate and calculated on a Category 2 Band B basis is $23,688. In addition, disbursements of $2,784.82 are claimed.
[10] The plaintiff’s memorandum in response acknowledges that costs generally follow the event but submits that in this case costs should lie where they fall. That submission is made on the basis that the defendants succeeded with their application for summary judgment based on a limitation defence. Counsel has asked the court to take into account the relative positions of the parties and the fact that some
17 months had expired since the judgment had issued. In addition, counsel has taken issue with the allowance for preparation of the counterclaim (1.6 days) and the list of documents and inspection of documents (a total of 3 days).
[11] Counsel for the defendants has responded pointing out that the matter was, in fact, determined on the merits because that clearly involves a consideration of the limitation position. With respect to the claim that allowance for the counterclaim and discovery should not be allowed, counsel submitted that both were matters that arise directly from the plaintiff’s proceeding.
[12] There are accordingly two matters of principle that need to be resolved in this case. The first is whether it is appropriate to order costs in favour of the defendants in this case. The defendants were the successful party. There are no disqualifying features that would indicate the defendants are not entitled to costs on the plaintiff’s claim.
[13] The second relates to the position of the counterclaim and discovery.
[14] The counterclaim, however, poses a different position. The defendants were not obliged to file a counterclaim. The counterclaim has now been discontinued.
[15] Counterclaims are covered in the High Court Rules in Part 5 Subpart 11. Pursuant to r 5.58, the counterclaim proceeds in the same manner as if the defendant
had commenced an independent proceeding against the plaintiff. When I apply that, it is clear that an allowance for preparation of the counterclaim in relation to the plaintiff’s proceeding is not appropriate and, for that reason, I do not allow it.
[16] The position in relation to discovery is, however, not so clear. Discovery appears to have been ordered in the course of case management conferences on this file and prior to the determination of the summary judgment application. The discovery appears to relate particularly to the plaintiff’s claim. On that basis, it seems to me that the allowance claimed for discovery and inspection by the defendants is appropriate as it forms part of the plaintiff’s case.
[17] As a result of the conclusions I have reached, the plaintiff’s claim for costs of
$23,688 must be reduced by the allowance claimed for the counterclaim of 1.6 days or $3,008. The result is that the proper claim for costs is $20,680.
[18] Counsel for the plaintiff raised the question of the delay in finalising costs. I can find no specific part on the defendants’ position that would disqualify it from obtaining the order for costs and, for that reason, I make no allowance for that delay.
[19] No contest was raised concerning the disbursements, which appear to be in order.
Order
[20] Accordingly, I order that the plaintiff pay the defendants’ costs in the sum of
$20,680, plus disbursements of $2,784.82.
JA Faire
Associate Judge
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