Wilkinson Adams v Bethune

[2012] NZHC 1873

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CIV-2011-412-000860 [2012] NZHC 1873

UNDER  the District Courts Act 1947

IN THE MATTER OF     an appeal pursuant to s72 of the District Courts Act 1947 in respect of a decision of the District Court at Dunedin

BETWEEN  WILKINSON ADAMS Appellant

ANDR J BETHUNE Respondent

Hearing:         On the papers

Judgment:      30 July 2012

COSTS JUDGMENT OF CLIFFORD J

[1]      On 26 April 2012 I delivered judgment in this appeal which I heard on

7 March 2012.  In that judgment I reserved the question of costs, but said that I did not see why costs should not follow the event on a 2B basis.   If the parties were unable to resolve the matter between them brief submissions were to be filed within

30 days of my judgment.

[2]      I am now in receipt of a memorandum of Farry & Co which would appear to be dated 14 May 2012, but which is stamped as having been received in Court on

15 June 2012, a memorandum from Wilkinson Adams as to costs dated 17 July 2012, stamped as having been received in Court that day, a further memorandum from Farry &  Co  dated  23  July  2012  and  a  further  memorandum  (in  reply)  from

Wilkinson Adams dated 24 July 2012.

WILKINSON ADAMS V BETHUNE (Costs) HC DUN CIV-2011-412-000860 [30 July 2012]

[3]      In their memoranda of 14 May/15 June 2012, Farry & Co apply for costs since this matter was commenced in the District Court.  Moreover, they do so on the basis of Schedule 2 of the High Court Rules, rather than Schedule 2 of the District Court Rules.   I decline to make an award of costs with respect to matters in the District Court, even if (which is not clear) I have jurisdiction to do so – particularly as regards those aspects of proceedings in the District Court which were not the subject of an appeal to this Court.

[4]      In my view, and as I set out in my judgment, costs in favour of Mr Bethune on a 2B basis are appropriate on the appeal in this Court.  I see no reason, in terms of the matters before me, for any award of increased or indemnity costs as regards that appeal.

[5]      In  terms  of Mr Wright’s  lengthy memorandum,  I decline to  engage in  a relitigation of the underlying merits of this dispute. The appeal succeeded because in my view, which Wilkinson Adams is of course entitled to disagree with, the default judgment in question had been obtained irregularly .

[6]      I  do  not  propose  to  traverse  the  exchange  of  “views”  recorded  in  the subsequent memoranda.  My comment to the parties is this: if they have difficulties with each other, the Law Society may be an appropriate venue for those matters to be aired.

[7]      I also award Mr Bethune costs on a 2B basis with respect to Wilkinson

Adams’ application to set aside my judgment.

[8]      As I read the Farry & Co memorandum filed 15 June 2012, the firm claims costs on my judgments dated 26 April 2012 and 23 May 2012 on a 2B basis as follows:

Appeal by appellant 10 November 2011

Preparation of submissions on appeal: 0.2days at $1,880.00               $376.00

Attendance at appeal hearing: 0.25 days at $1,880.00 per day             $470.00

Application to recall judgment 9 May 2012

Preparation of submissions in response: 0.2 days at $1,880 per day     $376.00

Total  $1,222.00

[9]      I make an order for costs accordingly.

[10]     I repeat the observation in my judgment of 26 April 2012 that it is now for Wilkinson Adams to determine how to pursue its claim in the District Court against Mr Bethune.

“Clifford J”

Solicitors:

Wilkinson Adams, Dunedin for the appellant ([email protected]) Farry & Co, Dunedin for the respondent ([email protected])