Walker v Bale

[2012] NZHC 2199

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2008-044-2721 [2012] NZHC 2199

BETWEEN  ISOBEL ANNE WALKER, ALISON CLAIRE MACMILLAN AND DIANE WARDILL AS TRUSTEES OF THE SCIWI FAMILY TRUST

Plaintiffs

ANDRONALD FRANK BALE AND JOAN NORMA BALE

First Defendants

ANDRONALD FRANK BALE AND JOAN NORMA BALE AS TRUSTEES OF THE BALE FAMILY TRUST OF AUCKLAND, TRUSTEES

Second Defendants

Hearing:         9 July 2012

Appearances: Mr Rainey for Plaintiffs

Ms Trotman for Defendants

Judgment:      30 August 2012

JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE [on Costs]

This judgment was delivered by me on

30.08.12 at 4.30 pm, pursuant to

Rule 11.5  of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:

Rainey Law, Shortland Street, Auckland

J M Trotman, Barrister, Silverdale

WALKER & Ors V BALE & ORS HC AK CIV-2008-044-2721 [30 August 2012]

[1]      I reserved costs in this matter and invited counsel to file memoranda not exceeding four pages on the costs issue.  The plaintiffs complied with the directions given in that regard.  The defendants did not.  They filed through their solicitor a memorandum  of  nine  pages  length  together  with  attachments.     This  clearly disregards the direction that I gave.   The direction I gave was designed to ensure some proportionality with the matters in dispute and to avoid unnecessary judicial resources being applied to ancillary questions such as costs.   No explanation has been provided as to why my direction was not complied with.  I decline to read the defendants’ memorandum.

[2]      I  have  considered  the  matters  that  Mr  Rainey  has  addressed  in  his memorandum.   I agree that 2B costs should be ordered and I also agree that a discount by one day will make sufficient allowance for the fact that in my judgment there were identified some deficiencies in the plaintiffs’ pleadings.

[3]      Two other matters were addressed by Mr Rainey which he said had been raised with him by the defendants.  First, was the point made for the defendants are litigants in person and that Rainey Law has only been instructed in respect of the strike out application.  Neither of these points has any merit.  I agree with Mr Rainey that the plaintiffs are entitled to instruct counsel to appear on their behalf for part only of the proceedings.  While the plaintiffs may indeed be litigants in person in the sense that they have undertaken a number of the steps in the proceeding on their own behalf, that does not preclude them either from instructing counsel to act for parts of the litigation and nor does it preclude them from claiming costs under the High Court Rules if the Court finds they are otherwise entitled to those costs.

[4]      I am satisfied that in undertaking the various steps relating to the strike out application  which  are  detailed  at  paragraph  4  of  Mr  Rainey’s  submission  the plaintiffs were indeed represented by Mr Rainey and that Mr Rainey rendered a bill of costs to them regarding those attendances.  I am further satisfied that the party and party costs sought pursuant to Rule 2B are less than the amounts actually charged on a solicitor/client basis by Rainey Law.  I further agree with the suggestion that there should be a discount as Mr Rainey has proposed.  The result is that I make an order

that the plaintiffs are to have costs on the strike-out application as calculated in accordance with Rule 2B for the sum of $7,263.50 which after a discount equivalent to one day’s attendances results in a figure for costs of $5,273.50.

[5]      Finally I record that making an award of costs in favour of the plaintiff is in conformity of the principle that the successful party is to have costs.

J.P. Doogue

Associate Judge