Wyatt v Real Estate Agents Authority

[2013] NZHC 725

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-1060 [2013] NZHC 725

BETWEEN  GREGORY JOHN WYATT Appellant

ANDTHE REAL ESTATE AGENTS AUTHORITY

BARFOOT & THOMPSON LIMITED Respondents

Hearing:         (on the papers) Appearances: Appellant in person

L J Clancy for the First Respondent

R B Hern and J E Tomlinson for the Second Respondent

Judgment:      11 April 2013

JUDGMENT OF WOODHOUSE J (Costs)

This judgment was delivered by me on 11 April 2013 at 4:00 p.m. pursuant to r 11.5 of the High Court Rules 1985.

Registrar/Deputy Registrar

……………………………………

Counsel / Solicitors / Parties: Mr G W Wyatt, Waiwera

Mr L J Clancy, Meredith Connell, Office of the Crown Solicitor, Auckland

Mr R B Hern and Mr J E Tomlinson, McElroys, Solicitors, Auckland

WYATT V THE REAL ESTATE AGENTS AUTHORITY HC AK CIV-2012-404-1060 [11 April 2013]

[1]      In my substantive judgment on the appeal by Mr Wyatt costs were awarded to Barfoot & Thompson.1    The sum was not fixed.  The parties have been unable to agree on quantum and seek an order on quantum.

[2]      Barfoot  &  Thompson  seeks  costs  of  $2,311  for  appearance  at  a  case management  conference,  preparation  for  the  appeal,  and  the  appearance  at  the hearing of the appeal.   Mr Wyatt accepts the calculation for the case management conference and the hearing.  He submits that Barfoot & Thompson is not entitled to preparation.  This is on the basis that Schedule 3 of the High Court Rules was amended from 14 June 2012.   The previous schedule made an allowance for preparation, but the new schedule does not and preparation would have occurred after 14 June 2012.  It is correct that the new schedule makes no allowance for preparation as such, but there is an allowance for preparation of written submissions. The allowance is for three days.  The claim by Barfoot & Thompson is for half a day. The claim by Barfoot & Thompson is entirely justified.

[3]      Consequently, subject to determination of some set-off items claimed by Mr

Wyatt, Barfoot & Thompson is entitled to costs in a sum of $2,311 as claimed.

[4]      Mr  Wyatt  opposes  Barfoot  &  Thompson’s  claim  for  disbursements  of

$463.40.  This is on the basis that the bundles of documents for the appeal were photocopied and bound at Mr Wyatt’s expense.  The fact that the appellant will usually be required to pay disbursements of the sort paid by Mr Wyatt does not mean that other parties to the appeal will not have disbursements.  The claim is reasonable and it too is allowed subject to determination of Mr Wyatt’s set-off arguments.

[5]      Mr Wyatt seeks an order for disbursements arising out of steps he took to obtain further evidence and file an application to have further evidence admitted on the appeal.  The particular issue addressed in the further evidence obtained by Mr Wyatt was an issue on which he did not succeed.  There is no justification for the

order sought by Mr Wyatt in this regard.

1 Wyatt v The Real Estate Agents Authority [2012] NZHC 2550.

[6]      Mr Wyatt also submits that the costs and disbursements award in favour of Barfoot & Thompson should be reduced by 25% because he was successful on the appeal ground dealt with in the substantive judgment at [62]-[65] – the conflict of interest question.  The submission for Barfoot & Thompson is that the costs order already made in favour of Barfoot & Thompson, in the substantive judgment, prevents Mr Wyatt from advancing this argument.  The formal costs order in the substantive judgment at [70] must be read in conjunction with the observation at [65] to the essential effect that the conclusion on the conflict of interest question “may have a bearing on costs”.  It is open to Mr Wyatt to advance the argument.  However, I am not persuaded that Mr Wyatt’s success on this particular point justifies a reduction of the sums for costs and disbursements that would otherwise be awarded to Barfoot & Thompson.  The conflict of interest question was important for Mr Wyatt.  However, as recorded in the substantive judgment at [5] it was not the central issue.   I am satisfied that the costs incurred by Barfoot & Thompson were not increased in any material way in respect of this further ground of appeal by Mr Wyatt.  Assessed overall an allowance to Barfoot & Thompson in respect of the substantive issue on which it succeeded in the sums of $2,311 for costs and $463.40 for disbursements is modest.

[7]      In  consequence  there  is  a  formal  order  fixing  the  costs  of  the  second respondent in a sum of $2,311 and the disbursements in a sum of $463.40.

Woodhouse J