Wilson v Whitianga Marina Society Incorporated

[2019] NZHC 2583

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2019-419-000224

[2019] NZHC 2583

BETWEEN

FREDERICK SCOTT WILSON

Plaintiff

AND

WHITIANGA MARINA SOCIETY INCORPORATED

Defendant

Hearing:	On the papers
Judgment:	11 October 2019

JUDGMENT OF DOWNS J

(Costs)

This judgment was delivered by me on Friday, 11 October 2019 at 1 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

Skeates Law Ltd, Auckland. Harkness Henry, Hamilton. GA Keene, Auckland.

WILSON v WHITIANGA MARINA SOCIETY INCORPORATED [2019] NZHC 2583 [11 October 2019]

[1]    On 29 August 2019, I declined to grant Mr Frederick Wilson an interim injunction. The defendant, Whitianga Marina Society Incorporated, seeks 2B costs. Mr Wilson resists costs.

[2]    Mr Wilson argues costs should not be awarded now. Rather, these should await determination of his substantive claim. Mr Wilson contends he may yet succeed. He highlights “some genuine questions” about the fairness of his treatment by the defendant.

[3]    Rule 14.8(1) of the High Court Rules 2016 requires a Judge to determine the costs of an interlocutory application—like this—when she or he determines the application. The Judge may do otherwise only if there are “special reasons to the contrary”.

[4]    No special reasons exist. That Mr Wilson believes “some genuine questions” exist about the fairness of his treatment is not a special reason for addressing costs later. Many plaintiffs believe they have been unfairly treated by defendants. Moreover, if Mr Wilson succeeds in his substantive claim, he will almost certainly receive costs—then.

[5]Mr Wilson also contests the amount of costs. These are:

Description	Number of days	Amount (at daily rate of $2,390)
Appearance at first call on 28 August 2019	0.2	$478.00
Filing opposition to interlocutory application	0.6	$1,434.00
Filing affidavits in support	1	$2,390.00
Preparation of written submissions	1.5	$3,585.00
Appearance for hearing for principal counsel	0.25	$597.50
Subtotal		$8,484.50

Disbursements
Filing fee for notice of opposition	$110.00
Total	$8,594.50

[6]    Mr Wilson submits the cost for preparing written submissions should be 0.75 of a day; not 1.5 days, as the written submissions were not extensive. The answer to this submission is that 1.5 days is in accordance with the schedule, and the schedule exists to avoid this sort of argument. Put another way, departures from scale are exceptional. There is no reason to depart scale here, particularly when the defendant had to prepare submissions under significant pressure of time.

[7]    Mr Wilson also argues the defendant should not have a day for preparing its affidavits. Mr Wilson observes this step is not provided for by the schedule. The defendant accepts as much, but argues this step was reasonable in the circumstances. Again, departures from scale are exceptional. There is no reason to depart scale in relation to this aspect.

[8]    So, the defendant has costs in terms of the table except for “Filing affidavits in support”.

……………………………..

Downs J