Gordon v Kanji

[2021] NZHC 1155

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-1707

[2021] NZHC 1155

UNDER

the Administration Act 1969 and Trustee Act 1956

BETWEEN

KATHLEEN MARY GORDON

Applicant

AND

GULAB (GEORGE) GOVIND KANJI

Respondent

Hearing:	On the papers
Counsel:	C McLean for the Applicant P M Webb for the Respondent
Judgment:	21 May 2021

JUDGMENT OF HARLAND J

[As to costs]

This judgment was delivered by me on 21 May 2021 at 4:30 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar  Date…………………………..

Solicitors:           McLean Law Ltd, Auckland

Denham Bramwell, Manukau

GORDON v KANJI [2021] NZHC 1155 [21 May 2021]

Introduction

[1]    On 23 February 2021, I issued my judgment in respect of this matter granting the applicant’s application to discharge and remove the respondent as administrator of the estate of Kathleen Martha de Thierry, appoint the applicant in his place, and vest land remaining in the estate in the applicant as trustee and executor. The applicant now seeks an award of costs against the estate amounting to $20,934.99, which would be the amount awarded if the proceedings were categorised by me as category 2B proceedings under rr 14.3, 14.5 and Schedule 3 of the High Court Rules 2016 (the Rules).

Approach to costs

[2]    Under r 14.1 of the Rules, costs are awarded at the discretion of the Court. As a general principle, the party who fails in a proceeding should pay costs to the party who succeeds.1 Under r 14.2(1)(b), an award of costs should reflect the complexity and significance of the proceeding. It should be assessed by applying the appropriate daily recovery rate to the time considered reasonable for each step reasonably required in respect of the proceeding.2 The determination of costs should be predictable and expeditious.3

[3]    For the purposes of r 14.2(1)(b), proceedings must be classified as falling within one of the following categories:

Category 1 proceedings          Proceedings of a straightforward nature able

to be conducted by counsel considered junior in the High Court

Category 2 proceedings          Proceedings of average complexity requiring

counsel of skill and experience considered average in the High Court

Category 3 proceedings          Proceedings that because of their complexity

or significance require counsel to have special skill and experience in the High Court

1      High Court Rules 2016, r 14.2(1)(a).

2      Rule 14.2(1)(c).

3      Rule 14.2(1)(g).

[4]    These categories respond to the skill and experience requirement of the proceeding, not to the skill and experience of counsel acting.4 However, the latter is generally some indication of the former.

[5]    Under r 14.5(2), a determination of what is a reasonable time for a step must be made by reference:

(a)to band A, if a comparatively small amount of time is considered reasonable; or

(b)to band B, if a normal amount of time is considered reasonable; or

(c)to band C, if a comparatively large amount of time for the particular step is considered reasonable.

[6]    The Court will focus on the complexity of the issues and the time involved in formulating arguments, not ordinarily on the length of the written submissions.5 Generally, costs are awarded on a 2B basis.6 However, the bands may differ at each step. As noted by the authors of McGechan on Procedure, a blanket assessment for banding does not accord with the Rules, unless it reflects that the case is an average one requiring a normal amount of time for each step.7

Costs sought and submissions

[7]    As the successful party, the applicant seeks 2B costs pursuant to the following schedule:

Item	Description	Allocation	Daily Recovery Rate	Total amount recoverable
1	Commencement of proceeding by plaintiff	3	$2,390	$7,170
12	Appearance at mentions hearing or callover	0.2	$2,390	$478

4      Andrew Beck and others McGechan on Procedure (online looseleaf, Thomson Reuters) at [HR14.3.01(b)].

5      Minister of Education v James Hardie New Zealand [2018] NZHC 2960 at [16].

6      Justice Fisher “The new High Court costs regime” (1999) LawTalk 532 at 7.

7      McGechan on Procedure, above n 4, at [HR14.5.01]. See Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2010] NZCA 400, (2010) 24 NZTC 24,500 at [161], citing Paper Reclaim Ltd v Aotearoa International Ltd [2007] NZCA 544, (2007) 18 PRNZ 743.

Item	Description	Allocation	Daily Recovery Rate	Total amount recoverable
32	Preparation for hearing	2	$2,390	$4,780
37	Filing application and supporting affidavits	2	$2,390	$4,780
40	Preparation of written submissions	1.5	$2,390	$3,585
42	Appearance at hearing for sole or principal counsel	0.25	$2,390	$597.50
Total	$22,346.50

[8]    As noted by the applicant, a costs award should not exceed the costs incurred by the party claiming the costs.8 The actual costs incurred by the applicant is

$20,934.99. Accordingly, the applicant seeks costs of $20,934.99.

[9]    Mr McLean, for the applicant, submits that the former executor and trustee, the respondent, supported the applicant’s application for orders. He submits the matter could not be heard on the papers as one of the beneficiaries, Patricia Nathan, filed a notice to appear for ancillary purposes. This notice expressed that Ms Nathan did not oppose the application but that she was concerned about the applicant’s age and health (although these concerns were not particularised).

[10]   Mr McLean highlights that in my judgment dated 23 February 2021 I was satisfied that the applicant was in good health regardless of age and that she was an appropriate person to take over the administration of the estate.

[11]   Mr McLean submits that neither Ms Nathan nor her counsel appeared at the hearing; nor did she provide an alternative executor and/or trustee.

[12]   Mr McLean further submits that the applicant intends to sell the estate property, being the half share in Taniwha Road, Waikato (the Taniwha property), and disburse the proceeds, after deduction of sale-related costs, to the beneficiaries. He submits

8      High Court Rules 2016, r 14.2(1)(f).

there is no liquidity in the estate from which the applicant could pay costs immediately; however, costs could be paid after the sale of the Taniwha property before the remaining proceeds from the residue of the sale are dispersed to the beneficiaries.

[13]The respondent did not file a response to the applicant’s application for costs.

Decision

[14]   It is appropriate in my view that the applicant should receive costs and that these costs should be paid out of the estate. I am however not persuaded that costs should be awarded on a 2B basis. While the documents filed by the applicant are moderately long, the issues raised are relatively straightforward and were not opposed. Were the notice of appeal not filed by Ms Nathan, the matter might well have been dealt with on the papers.

[15]   Accordingly, I consider these proceedings should be categorised as Category 1 proceedings, being proceedings of a straightforward nature able to be conducted by counsel considered junior in the High Court. I also consider that the steps should be categorised by reference to Band A. Given the straightforward nature of the proceedings, a comparatively small amount of time would have been reasonable.

[16]   Accordingly, I consider that costs should be calculated on a 1A basis, as follows:

Item	Description	Allocation	Daily Recovery Rate	Total amount recoverable
1	Commencement of proceeding by plaintiff	1.6	$1,590	$2,544
11	Filing memorandum for first or subsequent case management conference	0.2	$1,590	$318
12	Appearance at mentions hearing or callover	0.2	$1,590	$318
32	Preparation for hearing	2	$1,590	$3,180

Item	Description	Allocation	Daily Recovery Rate	Total amount recoverable
37	Filing application and supporting affidavits	1	$1,590	$1,590
40	Preparation of written submissions	0.5	$1,590	$795
42	Appearance at hearing for sole or principal counsel	0.25	$1,590	$397.50
Total	$9,142.50

Result

[17]I award the applicant costs of $9,142.50. Costs are to be paid out of the estate.

Harland J