Williams v Degan Farms (Bop) Limited (afka Tokoroa Landscaping & Tree Worx Limited)

[2020] NZHC 2167

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2020-470-23

[2020] NZHC 2167

UNDER

the District Court Act 2016, s 125

IN THE MATTER

of an appeal against a decision of the District Court granting summary judgment

BETWEEN

JACK DANIEL WILLIAMS as trustee of the JACK WILLIAMS AND LAUREN ANDREWS FAMILY TRUST

Appellant

AND

DEGAN FARMS (BOP) LIMITED (also

formerly known as TOKOROA LANDSCAPING & TREE WORX LIMITED)

Respondent

Hearing:	On the papers
Counsel:	M B Beech for the Appellant R Butler for the Respondent
Judgment:	25 August 2020

JUDGMENT OF GAULT J

(Costs)

This judgment was delivered by me on 25 August 2020 at 3:00 pm pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

……………………………………

Solicitors / Counsel:

Mr M B Beech, Barrister, Tauranga

Mr M Attwood (appellant’s instructing solicitor), Burley Attwood Law, Tauranga Mr R Butler, Barrister, Auckland

Mr T Refoy-Butler (respondent’s instructing solicitor), Mackenzie Elvin Law, Tauranga

WILLIAMS v DEGAN FARMS (BOP) LIMITED [2020] NZHC 2167 [25 August 2020]

[1]        The respondent seeks costs following the appellant’s discontinuance (abandonment) of an appeal against  summary  judgment  in  the  District  Court.  The appellant accepts some liability for costs but  disputes  the  amount  claimed. The parties have been unable to agree.

[2]        Rule 20.12(2) preserves a respondent’s right to apply for costs in the event an appellant abandons an appeal. While r 15.23 relating to costs on a discontinuance does not directly apply, a similar presumption in relation to costs on an abandoned appeal is appropriate. In any event, I consider the respondent is entitled to costs in this case.

[3]        It is not disputed that costs should be awarded on a 2B basis. The respondent’s calculation totals $20,554 whereas the appellant calculates $9,321.

[4]        The appellant disputes the respondent’s claim for its commencement of response to appeal.  I agree the costs schedule provides for 0.5 days rather than 1 day.

[5]        The appellant also disputes the claim for preparation for three first case management conferences (3 x 0.4) on the basis that there should only be one. I agree.

[6]        The appellant disputes the respondent’s 0.4 days for appearances at three case management conferences. The schedule provides for 0.3 days for appearances at first or subsequent case management conferences.  The appellant also disputes that the  27 May 2020 telephone conference should be categorised as a case management conference rather than a mentions hearing or callover. I agree. This conference should be allocated 0.2 days.

[7]        Finally, the appellant disputes the 3 days claimed for preparation of written submissions due on 15 July 2020 on the basis that the discontinuance was signalled a week earlier. Given that the appellant was seeking agreement on costs before filing a notice of discontinuance, it was reasonable for the respondent to continue to prepare. The respondent’s counsel advised on 12 July 2020 that the respondent’s submissions were “largely finalised, subject to any specific response required to your client’s submissions”. The appellant’s submissions were due the following day. On 13 July 2020 counsel for the appellant confirmed that the appellant would discontinue the

appeal. I agree that the respondent is not entitled to the full allowance for submissions but in the circumstances I consider a partial allowance is appropriate. I allow 1.5 days.

[8]Accordingly, the respondent is entitled to 2B costs for 5.4 days, totalling

$12,906.

Result

[9]        The respondent is entitled to costs of $12,906 plus disbursements as approved by the Registrar under r 14.22.

Gault J