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Woolf v Kaye aka Woolf

Woolf v Kaye aka Woolf

Case [2018] NZHC 3196 6 December 2018

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Woolf v Kaye aka Woolf

Details

AGLC: Woolf v Kaye aka Woolf [2018] NZHC 3196
Case: [2018] NZHC 3196
Decision Date: 6 December 2018

CaseChat Overview and Summary

In Woolf v Kaye, Mr Kaye, the defendant, applied for costs following the dismissal of Ms Woolf’s claims. There were three issues to be decided: the categorisation of various items of costs, whether indemnity or increased costs were warranted, and whether the disbursements claimed were reasonable. The court found that most of the costs should be categorised as band B, with some items categorised as band C. The court found that Ms Woolf had not acted unreasonably in rejecting settlement offers or in failing to comply with court orders and rules, and therefore indemnity or increased costs were not warranted. The court found that some of the claimed disbursements were reasonable, but others were not. Ultimately, Mr Kaye was awarded costs of $121,981 and disbursements of $123,662.45.

Orders