Boswell v Korving

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-921

[2022] NZHC 2647

BETWEEN
KATHRYN FRANCES BOSWELL

Appellant

AND

ANTHONY ROBERT KORVING

First respondent

ANTHONY ROBERT KORVING and
GRAHAM GUNN as Trustees of the

ROBERT KORVING FAMILY TRUST

Hearing: On the papers

Appearances:

Appellant in person

M A Tapsell for first respondent

Date of judgment:

13 October 2022

JUDGMENT OF JAGOSE J

[Costs]

This judgment was delivered by me on 13 October2022 at 3.30pm.
Pursuant to Rule 11.5 of the High Court Rules.

…………………………
Registrar/Deputy Registrar

Solicitors:
Law & Associates, Auckland

Copy to:
The appellant

BOSWELL v KORVING – Costs [2022] NZHC 2647 [13 October 2022]

[1] My 27 September 2022 judgment dismissing Ms Boswell’s appeal reserved costs for determination, if the parties did not accept my preliminary view (from what I then knew) 1B costs were payable to Mr Korving.1

[2] For Mr Korving, Tony Tapsell proposes 2B costs is the better categorisation as adopted in prior case management, reflecting the broader spectrum of signalled dispute then to be addressed. Nonetheless he only would claim 1B costs for preparation for and appearance at the hearing before me. I accept, on the scope of prospective dispute, the proceeding appropriately was classified a category 2 proceeding.

[3] Claiming the benefit of legal advice, Ms Boswell opposes both Mr Tapsell’s mix-and-match approach and claim for three days’ preparation, and seeks Mr Tapsell “produce all his costs and a realistic time frame at each step”.

[4] If Ms Boswell’s request is for Mr Tapsell’s actual time and expenses, scale rates and times are not informed by actuality,2 unless exceeding it.3 Presumptively, Mr Tapsell’s claim does not exceed Mr Korving’s legal expenses, as Mr Tapsell is obliged otherwise to disclose. Mr Tapsell’s approach also is permissible,4 and in the circumstances generous.

[5] I therefore order Ms Boswell pay Mr Korving costs and disbursements in the sum of $9,041.50.

—Jagose J

1      Boswell v Korving [2022] NZHC 2459 at [13]–[15].
2      High Court Rules 2016, r 14.2(1)(e).
3      Rule 14.2(1)(f).
4      Hojsgaard v Chief Executive of Land Information New Zealand [2019] NZCA 84, [2019] 2 NZLR 864 at [127].

CaseChat Overview and Summary

The appeal in Boswell v Korving was brought by Kathryn Boswell against Anthony Korving and Graham Gunn as Trustees of the Robert Korving Family Trust. The dispute arose from a prior judgment delivered by Jagose J, dismissing Ms Boswell's appeal and reserving the determination of costs. The costs reserved for determination were to be based on whether the parties could agree on the amount or if the court would need to determine them. The appellant appeared in person, while the first respondent was represented by Mr. Tony Tapsell. The court heard the matter on the papers and delivered its judgment on 13 October 2022.

The primary legal issue the court had to decide was the appropriate categorization of the proceeding for the purpose of determining costs, and the extent of the costs to be awarded. Mr. Tapsell, representing the first respondent, argued that the proceeding should be classified as a category 2 proceeding, which reflects a broader spectrum of the dispute. He proposed that 2B costs were payable to Mr. Korving, although he also claimed 1B costs for the preparation and appearance at the hearing before the court. Ms. Boswell, on the other hand, opposed Mr. Tapsell's approach and sought a detailed breakdown of the costs and time frames for each step.

The court held that the proceeding was appropriately classified as a category 2 proceeding due to the broader scope of the dispute. The court accepted Mr. Tapsell's approach as permissible and generous in the circumstances. The court further noted that Ms. Boswell's request for a detailed breakdown of the costs and time frames was not necessary since the scale rates and times are not informed by actual costs unless they exceed them. The court ultimately ordered Ms. Boswell to pay Mr. Korving costs and disbursements in the sum of $9,041.50.

In summary, the court determined that the proceeding was appropriately classified as a category 2 proceeding, and ordered the appellant to pay the respondent's costs and disbursements in the specified amount.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established