Wakefield v O'Byrne

[2024] NZHC 2143

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2023-409-632

[2024] NZHC 2143

BETWEEN

WENDY MAY WAKEFIELD

Appellant

AND

ROGER WILLIAM O’BYRNE

Respondent

Hearing:	On the papers
Counsel:	R E Walsh for the Appellant C Light for the Respondent
Judgment:	2 August 2024

JUDGMENT OF HARLAND J

(as to wasted costs)

Introduction

[1]    This case comprises an appeal and a cross-appeal against a costs determination of Judge C N Tuohy delivered on 19 October 2023 following his judgment on 12 September 2023 dismissing the appellant’s application against the respondent under the Harassment Act 1997.1

[2]    The appeal was due to be heard before me on 2 July 2024. It was however adjourned by me, largely because counsel for the appellant filed her submissions late and Mr Light, for the respondent, considered his client would be prejudiced by being required to proceed with the hearing because of this. I decided to adjourn the hearing

1      Wakefield v O’Byrne [2023] NZDC 19269.

WAKEFIELD v O’BYRNE [2024] NZHC 2143 [2 August 2024]

but made further directions, including directions addressing the respondent’s indication that he wished to apply for wasted costs.

[3]    Memoranda have been filed dealing with the issue of costs on the adjournment, which I determine in this judgment.

[4]I have decided to order the appellant to pay the respondent costs in the sum of

$2,306 for the reasons set out in this judgment.

The application and response to it

[5]    The respondent seeks wasted costs for a judicial telephone conference on 1 July and related appearances, as well as preparation for the hearing scheduled for 2 July 2024.

[6]    Counsel for the appellant accepts that costs incurred for the filing of the respondent’s memorandum seeking directions on 17 June 2024 ($956) and for the 1 July conference ($543.38) should be paid. She resists the further award of wasted costs of $845.25 claimed by the respondent for preparation in respect of the adjourned hearing.

Background

[7]    Counsel for the respondent filed a memorandum dated 17 June addressing the appellant’s failure to file her submissions in support of her appeal and he sought a direction that her submissions be filed no later than 5 pm 19 June 2024, as well as costs for the filing on a 2B basis amounting to $956.

[8]    Dunningham J issued a Minute on 18 June 2024 directing that the appellant file her submissions by 5.00 pm on 19 June 2024 and she also directed that any memoranda as to costs from the appellant were to be filed no later than 25 June 2024. The appellant did not meet those deadlines, neither did counsel respond to an email dated 20 June 2024 from the Registry enquiring about the appellant’s submissions.

[9]    On 24 June, the respondent filed his submissions in respect of his cross-appeal in the hope that it could proceed on 2 July.

[10]   The Registry emailed counsel for the appellant on 24 June 2024, advising of the hearing on 2 July 2024 and noting that the outstanding costs memorandum had not been filed. Counsel for the appellant did not respond to this email, neither did she file a costs memorandum.

[11]   On 27 June, I issued a Minute noting these breaches and I directed that a telephone conference be convened on 1 July 2024. Counsel for the appellant did not respond to the Registry when furnished with that Minute but attended the judicial telephone conference.

[12]   At the judicial telephone conference on 1 July 2024, counsel for the appellant apologised for her lack of communication, noting that occurred during a time where she was experiencing difficult personal circumstances. For this reason, counsel for the appellant accepts that the breaches are properly attributed to her. Nonetheless, counsel for the appellant indicated she was ready to proceed with the hearing the next day and indicated she would file her submissions forthwith. Upon reviewing the appellant’s submissions, counsel for the respondent considered proceeding with the appeal and cross-appeal on 2 July 2024 would prejudice his client.

[13]By Minute dated 1 July 2024, I adjourned the hearing set down for 2 July 2024.

Discussion

[14]   Counsel for the respondent refers to commentary in McGechan on Procedure, where it is stated that “[j]urisdiction to order a party whose default causes a fixture to be vacated…is well established”.2 He cited several cases in support3 and noted that

2      Jessica Gorman (ed) McGechan on Procedure (online ed, Thomson Reuters) at [HHRPt14.16A].

3      Jeffreys v Morgenstern [2013] NZHC 1361 at [31]; Marley New Zealand Ltd v Skellerup Rubber Services [2013] NZHC 3040 at [11]; Simpson v Hubbard [2012] NZHC 3020; Fu Hao Construction Ltd v Landco Albany Ltd HC Auckland CIV-2004-404-6608, 23 May 2008; Raiser Developments Ltd v Trefoil Properties Ltd HC Auckland CIV-2005-404-5883, 5 May 2008; and Hamilton v Papakura District Council (1997) 11 PRNZ 43 (HC).

the appropriate award is not restricted to scale costs and that actual costs incurred may be awarded.4

[15]   Counsel for the respondent advised that his charge out rate is $525 plus GST, with time records showing 1.4 hours spent in preparation for the hearing ($735 being

$845.25 with GST added). He noted that scale costs for preparation in respect of a one-day affidavit hearing would amount to $2,390 on a category 2 basis under the High Court Rules 2016 (HCR).

[16]   As outlined above, counsel for the appellant resists the claimed costs ($845.25) for preparation in respect of the appeal hearing on 2 July 2024, claiming that it would be more appropriate for such costs to be reserved and dealt with following the hearing.

[17]   Counsel for the appellant submits she was prepared to continue with the 2 July hearing and did not request an adjournment, unlike other cases where parties have requested an adjournment following their own defaults.5 She also submitted that, under Item 30, sch 3 of the HCR, costs should not be awarded as no affidavits have been filed in this proceeding and the bundle of documents had already been prepared by her and provided to counsel for the respondent. Further, counsel for the appellant noted that an “unless order” seeking strike out was not sought in respect of her breach of the Court’s timetabling directions.

[18]   In Alexander v Southern Response Earthquake Services Ltd, Associate Judge Paulsen stated:

[15]In the case of wasted costs, the rationale for providing a costs award is:

(a)   to compensate the other party who has wasted costs; and/or

(b)   to impose a sanction on the defaulting party, to avoid wastage of costs, judicial and court resources and inconvenience to other parties awaiting fixtures.”6

4      Marley New Zealand, above n 3, at [11]–[12], where Venning J cited r 14.63(d) of the High Court Rules 2016 in awarding increased costs.

5      Marley New Zealand Ltd v Skellerup Rubber Services Ltd, above n 3; Fu Hao Construction Ltd v Landco Albany Ltd, above n 3.

6      Marley New Zealand Ltd v Skellerup Rubber Services Ltd, above n 3, [11]; Jeffreys v Morgenstern, above n 3, at [31]–[32]; Fu Hao Construction Ltd v Landco Albany Ltd, above n 3, at [10].

[16]In deciding the quantum of an award, only costs wasted as a result of the discontinuing of the hearing will be awarded.7 The amount awarded is largely “a matter of impression and best judgment” at the time.8

[19]   The appellant’s acceptance of costs totalling $1,499.38 is noted. Putting aside the respondent’s rounding down, the figure in dispute is $845.25.

Should the in-dispute wasted costs be awarded?

[20]   I first note there should be no credit afforded to the appellant on account of her being ready to continue with the 2 July date when the respondent was not. Counsel for the appellant’s actions resulted in the appeal hearing being adjourned because it was unfair to the respondent to proceed with it.

[21]   Counsel for the appellant submitted that Jeffreys v Morgenstern may be distinguished on the grounds that the late documents in that case included those that had not previously been discovered. The appellant submitted there is a difference between documents not being disclosed on time before a hearing and submissions being filed late. While I accept that submission may be correct, the fact is that the appellant’s submissions were filed late enough to have the same effect, namely that the hearing had to be adjourned for fairness reasons.

[22]   In terms of further case comparison, I note, and agree with, Venning J’s finding that “[t]here is limited assistance to be had from other cases as the situations where cases are adjourned vary considerably”.9 Although I have been referred to several cases by counsel, the difference in scale and factual nexus means only the bare principles are of assistance. But, in any event, costs are at the discretion of this Court.10

[23]   Counsel for the appellant takes issue with the respondent’s reference to sch 3 of the HCR. I read counsel for the respondent’s reference to that schedule as an analogy in support of his argument as opposed to any claim on that basis. The

7      Jessica Gorman, above n 1, at [HHRPt14.16A(4)].

8      Opua Coastal Estate Ltd (in liq) v Mulholland [2014] NZHC 1467 at [22] citing Simpson v Hubbard, above n 3, at [28]; and Jeffreys v Morgenstern, above n 3, at [34].

9      Marley NZ Ltd v Skellerup Rubber Services, above n 3, at [9].

10     High Court Rules, r 14.1.

respondent is clear that he spent 1.4 hours “in preparation for the hearing” which is not an unreasonable amount of time.

[24]   Counsel for the respondent has charged out time to his client in preparation for a hearing that was adjourned because of the appellant’s failure to comply with the Court’s timetable directions. These costs are properly characterised as wasted because they will inevitably be charged out again prior to the next hearing. Some reimbursement is appropriately due to the respondent and I consider such costs should be awarded now, rather than being reserved.

How should costs be calculated?

[25]   The respondent has applied for wasted costs calculated as indemnity costs. Rule 14.6 of the HCR enables the Court to make an order that the costs payable (relevantly here) are the actual costs reasonably incurred by a party, which are known as indemnity costs. Rule 14.6 sets out the principles that apply where application is made for increased or indemnity costs. Rule 14.6(4) sets out the situations in which indemnity costs can be awarded. In this case, r 14.6(4)(b) applies. Indemnity costs are typically awarded where a party has behaved either badly or very unreasonably and misconduct of this kind to justify indemnity costs must be flagrant.11

[26]   When viewed overall, in my view, the repeated failure to comply with the Court’s timetable directions without explanation until the day before the hearing is sufficiently serious to justify indemnity costs for the wasted preparation.

[27]   However, I do not view the respondent’s preparation for the hearing to be entirely wasted, even though I accept counsel’s submission that he will require time to get up to speed to argue the appeal again. 12 I accept that the costs sought for this ($735 plus GST = $845.25) are reasonable.

11     Bradbury v Westpac Banking Corporation [2009] NZCA 234, [2009] 3 NZLR 400; Simpson v Hubbard, above n 3, at [18].

12     According to Ms Walsh’s submissions, Mr Light “made note of a subsidiary issue that he sought to file brief submissions in reply to prior to the appeal hearing”.

[28]In summary, Mr Light sought costs for the wasted hearing being vacated of

$1,388.63 ($845.25 plus $543.38) but accepted that these amounts could be appropriately rounded down to $1,350. This is a fair and appropriate suggestion.

Result

[29]   I order that the agreed costs be awarded in favour of the respondent as well as disputed costs as follows:

(a)        $956 for the 17 June memorandum; and

(b)       $1,350 (rounded down) for the 1 July conference and wasted hearing preparation costs.

[30]   The appellant is ordered to pay costs to the respondent of $2,306.00 within 10 working days.

Harland J

Solicitors:

Clark Boyce, Christchurch Shine Lawyers, Christchurch.