White v Allen - [2020] NZHC 1156

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-2478

[2020] NZHC 1156

BETWEEN
CAROLINE RUTH WHITE

Plaintiff

AND

RICHARD VIVIAN MARSH ALLEN

Defendant

Hearing: On the papers

Appearances:

Plaintiff in person

H M Twomey and N Faulkner for the Defendant

Judgment:

28 May 2020

JUDGMENT OF GAULT J

(Costs)

This judgment was delivered by me on 28 May 2020 at 4:00 p.m. pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar

……………………………………

Solicitors / Counsel / Parties:
The Plaintiff
Ms H M Twomey and Ms N Faulkner, Robertson, Auckland

WHITE v ALLEN [2020] NZHC 1156 [28 May 2020]

[1] In my interim judgment on costs dated 28 April 2020, I concluded that the parties had not reached a binding agreement as to costs in November 2019.1

[2] In the absence of such agreement, Mr Allen seeks costs on a 2B basis until 10 July 2018, then a 75 per cent uplift on scale costs until 17 June 2019, and indemnity costs thereafter, together with disbursements, totalling $120,758.41.

[3] I gave Ms White a final opportunity to address the costs to be fixed in the absence of agreement. After a short extension of time, Ms White submitted that the quantum of costs should be fixed by the Court at $91,430.16 as per the (non-binding) agreement, which was said to reflect scale costs until 10 July 2018 and a 75 per cent uplift on scale costs thereafter. Ms White also requested that the due date for payment reflect the COVID-19 pandemic bank lending restrictions.

Increased costs and indemnity costs

[4] In support of the increased / indemnity costs sought, Mr Allen claims that Ms White acted unreasonably in the proceeding and in rejecting settlement offers. Mr Allen relies on the following paragraphs of the High Court Rules 2016:

14.6 Increased costs and indemnity costs

…

(3)The court may order a party to pay increased costs if—

…

(b)the party opposing costs has contributed unnecessarily to the time or expense of the proceeding or step in it by—

…

(ii) taking or pursuing an unnecessary step or an argument that lacks merit; or

…

(iv)failing, without reasonable justification, to comply with an order for discovery, a notice for further particulars, a notice for interrogatories, or other similar requirement under these rules; or

1 White v Allen [2020] NZHC 819.

(v)failing, without reasonable justification, to accept an offer of settlement whether in the form of an offer under rule 14.10 or some other offer to settle or dispose of the proceeding;

…

(4)The court may order a party to pay indemnity costs if—

(a)the party has acted vexatiously, frivolously, improperly, or unnecessarily in commencing, continuing, or defending a proceeding or a step in a proceeding; or

…

(f) some other reason exists which justifies the court making an order for indemnity costs despite the principle that the determination of costs should be predictable and expeditious.

[5] As the Court of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading White v Allen

Details

AGLC: White v Allen [2020] NZHC 1156
Case: [2020] NZHC 1156
Decision Date: 28 May 2020

CaseChat Overview and Summary

In the High Court of New Zealand, Auckland Registry, Caroline Ruth White commenced proceedings against Richard Vivian Marsh Allen in relation to a dispute over a property transaction. The case involved issues surrounding a property purchase agreement, including allegations of misrepresentation and breach of contract. The dispute was heard and determined on the basis of written submissions, as there was no need for a hearing.

The central legal issue before the court was the determination of costs, specifically whether the defendant was entitled to increased or indemnity costs due to the plaintiff's conduct during the proceedings. The defendant, Mr Allen, argued that the plaintiff had acted unreasonably, taken unnecessary steps, and unreasonably rejected settlement offers, which warranted an award of increased or indemnity costs.

The court found that the plaintiff's conduct did indeed warrant an award of increased costs. The court accepted that the plaintiff unnecessarily pursued a separate proceeding against the defendant, despite the same issues being addressed in another proceeding. The court also found that the plaintiff unreasonably rejected a settlement offer that was more favourable than the result achieved at trial. Although the court did not find the plaintiff's conduct to be flagrant or exceptionally bad, the combination of factors led to the conclusion that an uplift of more than 50% on scale costs was justified. The court determined that an uplift of 75% on 2B scale costs after 10 July 2018, plus disbursements, was appropriate, resulting in a total award of costs and disbursements of $91,430.16.

In conclusion, the court awarded the defendant costs and disbursements in the amount of $91,430.16, reflecting the increased costs due to the plaintiff's unreasonable conduct during the proceedings. The court declined to defer the date for payment of the awarded costs.

Orders