IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2015-404-1043
[2018] NZHC 3196
BETWEEN VIRGINIA WOOLF
First Plaintiff
VIRGINIA WOOLF as Executor of the Estate of Noel Bernard Woolf
Second Plaintiff
AND
ALWYN BERNARD KAYE (previously known as ALWYN BERNARD WOOLF)
First Defendant
MARK WILLIAM SYDNEY CLARK as
Executor of the Estate of Violet Isabel Woolf Second Defendant
Hearing: On the papers Appearances:
G A Keene for the Plaintiffs
A Gilchrist and C Fry for the Defendants
Judgment:
6 December 2018
JUDGMENT OF GORDON J
[Costs]
This judgment was delivered by me
on 6 December 2018 at 11 am, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
Solicitors: Foy Halse, Auckland
Richard Wood, Auckland
Counsel:G A Keene, Auckland A Gilchrist, Auckland
WOOLF v KAYE [2018] NZHC 3196 [6 December 2018]
Introduction
[1] On 24 August 2018, I gave judgment in favour of the first defendant, Mr Kaye, against the first plaintiff, Ms Woolf.1 I dismissed all of Ms Woolf’s claims in respect of a property which she occupied (and which she continues to occupy pursuant to a stay2 pending her appeal to the Court of Appeal) and whose sole registered proprietor is her brother, Mr Kaye. I made a range of orders relating to the property.3
[2] The parties have been unable to come to an agreement on costs. Mr Gilchrist, on behalf of Mr Kaye, has filed a memorandum seeking costs and disbursements as set out in Annexure A to this judgment.
Principles
[3] Costs are at the discretion of this Court.4 The High Court Rules (the Rules) provide guidance as to how the discretion might be exercised.5
[4] The general principle is that the party who fails with respect to a proceeding should pay costs to the successful party.6 The successful party should be awarded costs on a scale basis.7 But when applying the scale costs regime, the court must consider each formal step individually for the purposes of assessing the appropriate time band. A blanket approach is not appropriate.8
[5] Ultimately, the overriding consideration when exercising the discretion to award costs is that any award ought to do justice between the parties.9
Submissions
[6] Mr Gilchrist submits that if all costs were calculated on a 2B basis, the claim would be $119,305. He says this is the minimum amount that is recoverable.
1 Woolf v Kaye [2018] NZHC 2191.
2 Woolf v Kaye [2018] NZHC 2940.
3 Woolf v Kaye, above n 1, at [381].
4 High Court Rules, r 14.1(1).
5 Rules 14.2-14.7.
6 Rule 14.2(1)(a).
7 Manukau Golf Club Inc v Shoye Venture Ltd [2012] NZSC 109, [2013] 1 NZLR 305 at [8].
8 Paper Reclaim Ltd v Aotearoa International Ltd [2007] NZCA 544 at [35].
9 Packing In Ltd (in liq) v Chilcott (2003) 16 PRNZ 869 (CA) at [5].
Notwithstanding that calculation, he submits that some of the items took more than a normal amount of…
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