Yarrow v Pettigrew

[2012] NZHC 1882

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CIV-2011-443-315 [2012] NZHC 1882

IN THE MATTER OF     the Trustee Act 1956

BETWEEN  PAUL STEVEN YARROW Plaintiff

ANDCOLIN RITCHIE PETTIGREW First Defendant

ANDDUNCAN DOVICO (NZ) LIMITED Second Defendant

ANDDUNCAN DOVICO TRUSTEES LIMITED AND PAUL STEVEN YARROW AS TRUSTEES OF THE PS YARROW FAMLY TRUST NO 5

Third Defendants

(On the papers)

Counsel:         DM Connor and JS Campion for plaintiff

AR Gilchrist and PJ Knapp for first defendant and first-named third defendant

Judgment:      31 July 2012

JUDGMENT OF ASSOCIATE JUDGE FAIRE [on costs]

Solicitors:           Dukesons Business Law, PO Box 946, Auckland 1140

Dennis Gates, PO Box 222, Whangaparaoa 0943

YARROW V PETTIGREW HC NWP CIV-2011-443-315 [31 July 2012]

[1]      In my judgment of 13 March 2012 I made orders in terms of paragraph 1.1 of the plaintiff’s application as moved.  I reserved costs.  I directed that if the parties were unable to agree, memoranda in support, opposition and reply shall be filed and served at seven-day intervals.  That position has been confirmed by the minute of

28 June 2012 of Associate Judge Abbott.

[2]      The plaintiff’s application was taken on review and my judgment was upheld by Heath J.   His Honour dealt with costs and ordered that the first defendant and first-named third defendant pay the plaintiff ’s costs on the review application on a

2B basis, plus disbursements which his Honour approved.

[3]      The  only  issue  outstanding  is  whether  costs  should  be  awarded  on  the plaintiff’s  application  which was  heard before  me.   No issue is  taken  with  the plaintiff’s calculation of 2B costs and disbursements.

[4]      Rule 14.1 gives the Court a discretion to order costs in relation to a step taken in a proceeding.  That discretion is generally to be exercised in accordance with the specific Rules contained in rr 14.2-14.10:  Glaister v Amalgamated Dairies Ltd.[1]   In Mansfield Drycleaners  Ltd v Quinny’s Drycleaning (Dentice Drycleaning Upper Hutt) Ltd it was said of the costs regime contained in what is now rr 14.2-14.10 that:[2]

[1] Glaister v Amalgamated Dairies Ltd [2004] 2 NZLR 606 at [19].

[2] Mansfield Drycleaners Ltd v Quinny’s Drycleaning (Dentice Drycleaning Upper Hutt) Ltd (2002) 16 PRNZ 662 (CA) at 668.

there is a strong implication that a Court is to apply the regime in the absence of some reason to the contrary

The test to be applied is entirely an objective and not a subjective one.   The only reference which  it is necessary to make towards actual costs is to be found in r 14.2(f), namely that an award of costs should not exceed the costs incurred by the party claiming the costs: Glaister v Amalgamated Dairies Ltd.[3]

[3] Glaister v Amalgamated Dairies Ltd, above n 1 at 610[14].

[5]      Rule 14.2 lists the principles applying to determination of costs. Subrule (a)

affirms the principle that the losing party should pay the costs to the successful party.

Subrule (b) requires that the costs reflect the complexity and significance of the proceedings and refers specifically, therefore, to the categorisation of a proceeding which is provided for in r 14.3.  Subrule (c) requires a consideration of each step for which costs are sought and an application of the daily rate having regard to the appropriate band which is to be applied after a consideration of r 14.5(2) and the Third Schedule to the High Court Rules.

[6]      The issue determined by this application is whether or not it was appropriate for Mr Henry to remain as counsel for the parties who were opposing the plaintiff’s application.   I found that it was not.  The plaintiff was therefore successful.  That position was upheld on review.

[7]      Mr Gilchrist  submitted  that  what  was  at  stake  here  was  effectively  the granting of an indulgence in favour of the plaintiff.  I do not accept that submission. There was a challenge to Mr Henry continuing to act.   The defendants instructed counsel to maintain that challenge.  It proved unsuccessful.  I see no reason, in the circumstances, to depart from the normal rule.

[8]      The above leads to the conclusion that costs on a 2B basis on the application should be ordered in favour of the plaintiff.  I so order.

[9]     I note that counsel are agreed on quantification both as to costs and disbursements in respect of both the application before me and the review.   Their agreement indicates an agreement to an overall costs figure for both hearings, including disbursements, of $6,073.92.

[10]     Accordingly, that is the figure required to be paid by the defendants, both in respect of the order for costs that I make and the order for costs as made by Heath J

on the review application.

JA Faire

Associate Judge