Wynn Williams & Co v Kain

[2012] NZHC 287

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2010-409-002772 [2012] NZHC 287

BETWEEN  WYNN WILLIAMS & CO Plaintiff

ANDGEORGE CHARLES KAIN First Defendant

ANDGEORGE MICHAEL KAIN Second Defendant

ANDGEORGE THOMAS CARLTON KAIN Third Defendant

ANDGEORGE HARRY KAIN Fourth Defendant

ANDGEORGINA KAIN Fifth Defendant

Counsel:         G Nation for Plaintiff

O G Paulsen and K McMullen for Defendants

Judgment:      27 February 2012

JUDGMENT OF HON JUSTICE FRENCH

as to Costs

Introduction

[1]      In my decision of 6 September 2011, I granted Wynn Williams summary judgment against the Kains for legal fees owing to the firm under a success fee

arrangement.

WYNN WILLIAMS & CO V KAIN HC CHCH CIV-2010-409-002772 [27 February 2012]

[2]      As regards the costs of the summary judgment application, my expectation was that these would be able to be resolved by the parties themselves, but in the event that did not prove possible, provision was made in the judgment for the filing of submissions.

[3]      The parties agree that costs should follow the event, and that because Wynn Williams was successful, it is entitled to an award of costs.   It is also common ground that the appropriate costs category is category 2.

[4]      However, in dispute are the following issues: (a)        What is the appropriate time band?

(b)      Is Wynn Williams entitled to an uplift of 50 per cent on scale costs? (c)        Is Wynn Williams entitled to photocopying costs claimed?

What is the appropriate time band?

[5]      Under r 14.5 High Court Rules, a determination of what is a reasonable time for a step in the proceeding must be made by reference to:

Band  A  if  a  comparatively  small  amount  of  time  is  considered

reasonable; or

Band B if a normal amount of time is considered reasonable; or

Band C if a comparatively large amount of time for the particular step is considered reasonable.

[6]      In a summary judgment context, the allocation of a time band is relevant in respect of:

(ii)Preparing  and  filing  summary  judgment  application  and supporting affidavits.

[7]      Wynn  Williams  submits  the  defences  raised  by  the  Kains  required  the preparation of extensive affidavits in reply and the production of numerous documents, all of which took significant time to examine and collate.   The firm submits that in those circumstances the appropriate time band for both steps is Band C.

[8]      For their part, the Kains contend it should be Band A.

[9]      Under the Rules, the time bands for the commencement of a proceeding have been calculated on the basis that the lawyer will be required to receive instructions and research facts and law as well as prepare the statement of claim.  Here, however, the law firm  was acting for itself  and already in possession of all the relevant knowledge.   I therefore accept Mr Paulsen’s submission that the appropriate time band for the commencement of the proceeding (statement of claim/notice of proceeding) is Band A, which allows for 1.6 days.  Band B’s 3 days and Band C’s 10 days are patently excessive.

[10]     I do not, however, accept Mr Paulsen’s further submission that preparation for the hearing should also be Band A.   In advancing that argument, Mr Paulsen relies on the fact that when the application for summary judgment was first filed, it was supported by only a six and a half page affidavit.[1]  The extensive affidavits came later in response to the notice of opposition.   However, these later affidavits were nevertheless supporting affidavits and so in my view come within the purview of the step “preparing and filing summary judgment application and supporting affidavits”. It would be most unjust if that were not the case.  A comparatively larger amount of

time than normal was reasonable, and accordingly in respect of that step I find the

appropriate time band is Band C.

[1] Mr Paulsen presumes this was because Wynn Williams took the view (found by me to be erroneous) that s 161 of the Lawyers and Conveyancers Act 2006 precluded the Kains from raising any defence.

[11]     Wynn Williams seeks an uplift of 50 per cent on preparation for hearing and the conduct of the hearing.  It does so on the following grounds:

(i)The Kains contended that they had an arguable defence and/or the Court should exercise its discretion not to enter judgment on a wide ranging factual/legal basis.  Dealing with the attacks they made required careful examination of an extensive factual background, and many documents.

(ii)The attacks involved issues of law which were important and in at least some instances novel and difficult.

(iii)     The Kains attacked the professional integrity and competence

of Wynn Williams’ lawyers who had done work for them.

(iv)The claim was for a fee which the Kains agreed they would pay for work which they required of Wynn Williams.   They had the benefit of the work which they had agreed to pay for. The preparation for the hearing and counsel’s involvement in the hearing itself were necessary because the Kains sought to avoid that liability on grounds which the Court has found were without merit.  The Kains did not act reasonably in seeking to avoid liability on the grounds relied on in opposing summary judgment.

[12]     The Kains resist any uplift.

[13] Some of the arguments relied upon by the Kains raised novel and difficult points of law and were, I accept, fairly raised. Wynn Williams was also wrong, in my view, in its contention that s 161 of the Lawyers and Conveyancers Act was conclusive.

[14]     On the other hand, some of the arguments raised by the Kains lacked merit. Their attempt to deny that a contract had come into existence in 2007, for example, was in my view spurious, as was the claim they had been negligently advised.  Both those   matters   occupied   a   significant   part   of   the   hearing   and   would   have unnecessarily contributed to the time and expense of the proceeding.

[15]     Weighing up these matters and looking at the overall justice of the situation, I consider that some uplift is warranted, but not as much as 50 per cent.  I consider that an uplift of 20 per cent is appropriate both in respect of preparation and hearing.

Photocopying costs

[16]     Wynn Williams claims photocopying costs amounting to $1172.46.   These costs are itemised as follows:

Photocopying pleadings, bundles, affidavits, authorities (977 x .40 x 3)

[17]     The Kains contend that these are not claimable, on the grounds that the documents that were photocopied by Wynn Williams were in large part documents that the firm failed to put into evidence.  The Kains contend they should not have to pay for photocopying documents Wynn Williams should have put into evidence by affidavit.

[18]     I do not accept the logic of that argument.

[19]     It  is  well  established  that  photocopying  necessary  and  specific  to  the litigation is allowed.[2]    It should not matter whether the photocopying is of exhibits annexed to an affidavit or exhibits in a bundle.  All that matters is that they were

expenses that were necessary and specific to the litigation, which these were.

Outcome

[2] Mawhinney v Waitakere City Council HC Auckland CIV-1999-404-001850, 26 September 2007.

[20]     The time band for step 1, commencement of proceeding, is Band A.

[21]     The time band for step 2, preparing and filing summary judgment application and supporting affidavits, is Band C.

[22]     Steps  3  and  4,  preparation  for  hearing  and  arguing  defended  summary judgment application, are each to be calculated on the basis of one and a half days plus 20 per cent increase.

[23]     Wynn Williams is entitled to the photocopying costs claimed.

[24]     In the event the calculation arising from these rulings is not agreed, leave is reserved to either party to seek further directions.

Solicitors:

Wynn Williams & Co, Christchurch

Cavell Leitch Law, Christchurch