Wiggins v Wiggins

[2024] NZHC 1222

IN THE HIGH COURT OF NEW ZEALAND MASTERTON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKAORIORI ROHE

CIV-2023-435-003

[2024] NZHC 1222

IN THE MATTER OF

the Hamerton Trust

BETWEEN

JENNIFER ANNE WIGGINS

Plaintiff

AND

IAN WIGGINS

Defendant

Hearing:

On the papers

Appearances:

R Marsich for Plaintiff

D G Dewar for Defendant

Judgment:

16 May 2024

JUDGMENT OF CHURCHMAN J COSTS

Introduction

[1]                 On 19 April 2024 I dismissed an application by the plaintiff for an order pursuant to s 145(1)(b) of the Trusts Act 2019 referring the parties to mediation.1

[2]                 I invited the parties to settle costs between themselves and in the absence of an agreement within 14 days I directed the parties to file memoranda.

[3]                 The defendant did not comply with the 14 day time limit, only filing his memorandum on 10 May 2024 having only forwarded his proposed costs figure to the plaintiff on 9 May 2024.

1      Wiggins v Wiggins [2024] NZHC 863 [the Judgment].

WIGGINS v WIGGINS [2024] NZHC 1222 [16 May 2024]

Submissions

Applicant’s submissions

[4]                 Counsel for the defendant/applicant explains the delay in filing the memorandum as being a result of “pressure of other work”.

[5]                 The defendant’s memorandum also refers to the fact that discussion seeking to resolve overall resolution between parties had begun and that “in the meantime the defendant does wish to have the current costs issue determined.” The costs claimed by the defendant come to $12,308.50, calculated on a 2B basis.

[6]                 In addition to claiming costs for the interlocutory application, the defendant claims costs for the case management that occurred prior to the s 145 application being made into a formal interlocutory application. It is also submitted that a two day allowance for the affidavit evidence prepared should be made, with that work analogous to preparing originating application evidence.

Respondent’s submissions

[7]                 The plaintiff/respondent disagrees with the defendant’s costs figure and submits that a number of steps included in their figure are not claimable, and that the costs figure should instead be $3,737 calculated on a 1B basis.

[8]                 Counsel for the plaintiff argues costs on a 1B basis is appropriate as the application was straightforward and not factually or legally complex. He also states that the first and second items the defendant claims, namely for preparing and filing a memorandum and preparing a memorandum in response to the request for review, are not claimable for an interlocutory application as they concern matters that predate the setting down of the interlocutory application. The plaintiff further submits the attendance at a mentions hearing cannot be claimed as the defendant’s counsel did not appear at that hearing, and that the defendant cannot claim for preparing and filing affidavits for this type of application. The affidavits are said to not be lengthy or complex with only a limited number of attached exhibits.

[9]                 The plaintiff submits the defendants’ agreement to a 50/50 division of the Wiggins Group during the interlocutory application is relevant to costs. Counsel also refers to an email attached to the memorandum, where the defendant suggests payment of costs could be deferred, as supporting either deferring the question of costs until the settlement of the proceedings, or if costs are to be settled now, delaying payment of costs until the earlier of the settlement of proceedings or six months from the date of the judgment.

Analysis

[10]              The correct cost category and band is 2B. It has been recognised that in practice awarding costs on a category 1 basis is relatively uncommon and that category 2 covers most procedures.2 For procedures to fall within category 1 they need to be of a “straightforward nature”.3 In Fraser, category 1 was appropriate as that case concerned a straightforward stay application where all that was required was application of the mandatory factors that the Court must take into account.4 This was a more complex matter.

[11]              The first and second items claimed by the defendant are in fact claimable. They were a necessary precursor to the interlocutory applications,5 as they related to the same matter, namely the question of the parties being referred to mediation under     s 145(1)(b) of the Trust Act 2019. The entrenched positions revealed by those memoranda led La Hood J in his minute dated 5 February 2024 to determine that a hearing and the filing of an interlocutory application was necessary.

[12]              The third item is not claimable as the plaintiff is correct in her observation that the defendant’s counsel did not actually attend the mentions hearing on 13 February 2024. Costs cannot be claimed for an action that did not take place.

[13]              With regard to preparation and filing of affidavits, it has been determined that the preparation of affidavits is encompassed within step 23, namely the filing of

2      David Bullock and Tim Mullins The Law of Costs in New Zealand (LexisNexis, Wellington, 2022) at [2.8].

3      High Court Rules 2016, r 14.3.

4      Fraser v Fraser [2017] NZHC 1307 at [3]–[9].

5      Rongotai Investments Ltd v Wellington City Council [2020] NZHC 820 at [9].

opposition    to    an  interlocutory   application.6      If particularly complex and comprehensive affidavit evidence was required, then the proper way to acknowledge this would be to seek an increase of the band to band C for step 23. The two affidavits filed are relatively short, both amounting to six pages with five exhibits to the defendant’s affidavit and two to Mr Walker’s affidavit. An increase to the band for this item is therefore unnecessary.

[14]              The defendant consenting in his affidavit consent to a 50/50 division of the Wiggins Group shares as a means of settlement is irrelevant to determination of costs. The defendant’s agreement to such a division would not have resolved matters as the consent of W Wiggins (Nominees) Ltd was required as set out in the Judgment.7

[15]              In relation to the defendant’s email and whether to defer resolution of payment of costs, the High Court Rules stipulate that costs for interlocutory applications become payable when they are fixed, unless there are special reasons to the contrary.8 In Self-Realization Meditation and Healing Centre Charitable Trust, the Court found the existence of an application for review to be a special reason permitting deferment of payment.9 The defendant’s statement that payment can be deferred was conditional on the figure being agreed, which did not occur in this case. There is also a clear conflict between the defendant’s memorandum which indicates he wants costs fixed, and the offer of deferral in the earlier email. Although the late filing of the defendant’s claimed costs meant the plaintiff did not have a proper opportunity to negotiate costs, I do not consider that special conditions exist to alter the position that costs are payable when they are fixed.

[16]              However, there must be some recognition for the fact that the defendant submitted his costs memorandum eight days late. Consequently, I make a reduction of 10 per cent to account for this failure to comply with time limits.

6      Tandem Group Ltd v ASB Bank Ltd [2021] NZHC 1135 at [13]–[23].

7      Wiggins, above n 1, at [11].

8      High Court Rules, r 14.8(1)(b).

9      Self Realization Meditation and  Healing  Centre  Charitable  Trust  (New  Zealand)  v  IAG  New Zealand Ltd [2018] NZHC 2612 at [28].

[17]The costs available therefore become:

Date	Item	Action	Days	Amount
11/11/23	11	Preparation and filing of memorandum	0.4	$956
2/2/24	11	Preparation of memorandum in response to plaintiff’s request for review	0.2	$478
29/2/24	23	Filing opposition to interlocutory application	0.6	$1,434
11/4/24	24	Preparation of written submissions	1.5	$3,585
18/4/24	25	Appearance at hearing	0.25	$597.50
Total				$7,050.50
Final Amount (with 10 per cent reduction)				$6,345.45

Result

[18]              I award costs to the defendant of $6,345.45. It is obviously a matter for the defendant as to whether he seeks to immediately enforce the costs award or to wait until further negotiations are completed.

Churchman J

Solicitors:

DW Lawyer, Auckland for Plaintiff

Thomas Dewar Sziranyi Letts, Lower Hutt for Defendant