Young v Ross - [2023] NZHC 747

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2022-441-059

[2023] NZHC 747

BETWEEN
PHILIP ROGER YOUNG

Appellant

AND

PHILIP NICHOLAS ROSS

Respondent

CIV-2022-441-060

BETWEEN

PROGRESSIVE ACCOUNTANTS LIMITED

Appellant

AND

PHILIP NICHOLAS ROSS

Respondent

On the papers:

Counsel:

P R Young in person

Judgment:

4 April 2023

JUDGMENT (NO. 3) OF CHURCHMAN J [COSTS]

Introduction

[1] On 17 February 2023, I issued my substantive decision in these proceedings, dismissing the appellants’ appeals against two decisions of the District Court at Napier striking out the appellants’ respective claims.1 I considered all of the causes of action had no prospect of success and were properly struck out.2

1 Young v Ross [2023] NZHC 212.
2 At [72].

YOUNG v ROSS (NO. 3) (COSTS) [2023] NZHC 747 [4 April 2023]

[2] I invited the parties to settle costs between themselves by agreement, failing which they were to file memoranda as to costs which I would then deal with on the papers. It appears agreement has not been reached.

[3] The respondent, Mr Ross, has now filed a memorandum claiming costs. Mr Ross’ calculations are based on recovery on a 2B scale basis, with allowance for a second memorandum for the case management conference. He also seeks for the costs to be uplifted by 30 per cent on the basis the appellants’ arguments lacked merit and the appellants acted vexatiously and made scandalous allegations against the respondent, resulting in a final claim for the costs in the sum of $19,418.75.

[4] This is opposed by Mr Young, on behalf of the appellants. He claims that awarding costs to Mr Ross here would undermine an agreement between them whereby each agreed to bear their own costs. He rejects both the calculation of costs on the amount of time said to have been spent in preparation for the hearing, as well as any uplift.

[5] It is also relevant that Mr Young has made an application for leave to bring a second appeal against my decision to the Court of Appeal. He submits in his memorandum as to costs that any award of costs should be delayed until after the appeal is heard. However, I have dismissed that application for leave to bring a second appeal, and I consider it is appropriate at this time to address the application brought by Mr Ross for costs as the successful party in the proceedings before me.

Discussion

[6] Costs are at the discretion of the Court.3 The overall objective is to achieve the outcome that best meets the interests of justice. The High Court Rules 2016 apply to the calculation of costs and set out the principles according to which the discretion must be exercised. Costs will typically be awarded to the successful party,4 which in this case was the respondent, Mr Ross.

3 High Court Rules 2016, r 14.1(1).
4 Rule 14.2(1)(a).

[7] In considering any costs award, I first address a technical matter raised by Mr Young,…

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 Young v Ross

Details

AGLC: Young v Ross [2023] NZHC 747
Case: [2023] NZHC 747
Decision Date: 4 April 2023

CaseChat Overview and Summary

The case of Young v Ross involved appeals against decisions of the District Court, which had struck out the appellants' claims. The appellants, Philip Roger Young and Progressive Accountants Limited, were represented by Mr Young in person. The respondent, Philip Nicholas Ross, filed a memorandum claiming costs based on a 2B scale basis with a 30 per cent uplift, resulting in a final claim of $19,418.75. The appellants opposed the claim, arguing that an agreement between the parties stipulated that each party would bear their own costs, and that the calculation of costs and any uplift were not justified. The court was required to decide whether the respondent's claim for costs was appropriate, taking into account the High Court Rules 2016 and the principles for exercising the court's discretion. The court also had to determine whether the amount of time claimed by the respondent for preparation was reasonable and whether an uplift was justified based on the merits of the appellants' case. The court found that the respondent's claim for costs was appropriate and awarded the full amount claimed. The court rejected the appellants' argument that the respondent's claim was in breach of a prior agreement, as the agreement related to a different proceeding. The court also found that the amount of time claimed by the respondent for preparation was reasonable and granted the allowance for a second memorandum. The court concluded that an uplift was appropriate due to the lack of merit in the appellants' case and the persistence in advancing unmeritorious arguments. The court awarded a 30 per cent uplift, which it found to be appropriate given the circumstances.

The final orders of the court were that the appellants were to pay the respondent costs of $19,418.75, with $2,230 already lodged with the court as security for costs to be paid to the respondent in partial satisfaction of the costs order.

Orders