Hamilton Cosmopolitan Club v Lewis

[2023] NZHC 270

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2022-419-64

[2023] NZHC 270

BETWEEN

HAMILTON COSMOPOLITAN CLUB INCORPORATED

Appellant

AND

LISA ROCHELLE LEWIS

Respondent

Judgment:

(On the papers)

23 February 2023

JUDGMENT OF BREWER J

[Costs]

This judgment was delivered by me on 23 February 2023 at 11 am pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Webb Gould Law (Hamilton) for Appellant McKenna King Dempster (Hamilton) for Respondent

HAMILTON COSMOPOLITAN CLUB INC v LEWIS [2023] NZHC 270 [23 February 2023]

[1]                 In my judgment of 5 October 2022,1 I allowed the appellant’s appeal against a decision of the District Court.2

[2]                 Counsel for the appellant has submitted a schedule of costs addressing both the proceeding in the District Court and the appeal in this Court. It is calculated (as is appropriate) on a 2B basis. The total sought is $55,633.67.

[3]                 The respondent does not oppose the appellant’s calculation. Instead, she submits that there should be no costs awarded against her, or that, alternatively, there should be a reduction of 60 per cent.

[4]                 The guiding principle is that costs follow the event. An exception is provided by r 14.7:

14.7     Refusal of, or reduction in, costs

Despite rules 14.2 to 14.5, the court may refuse to make an order for costs or may reduce the costs otherwise payable under those rules if—

(a)the nature of the proceeding or the step in a proceeding is such that the time required by the party claiming costs would be substantially less than the time allocated under band A; or

(b)the property or interests at stake in the proceeding were of exceptionally low value; or

(c)the issues at stake were of little significance; or

(d)although the party claiming costs has succeeded overall, that party has failed in relation to a cause of action or issue which significantly increased the costs of the party opposing costs; or

(e)the proceeding concerned a matter of public interest, and the party opposing costs acted reasonably in the conduct of the proceeding; or

(f)the party claiming costs has contributed unnecessarily to the time or expense of the proceeding or step in it by—

(i)failing to comply with these rules or a direction of the court; or

(ii)taking or pursuing an unnecessary step or an argument that lacks merit; or

1      Hamilton Cosmopolitan Club Inc v Lewis [2022] NZHC 2555.

2      Lewis v Hamilton Cosmopolitan Club Inc [2022] NZDC 1569.

(iii)failing, without reasonable justification, to admit facts, evidence, or documents, or accept a legal argument; or

(iv)failing, without reasonable justification, to comply with an order for discovery, a notice for further particulars, a notice for interrogatories, or other similar requirement under these rules; or

(v)failing, without reasonable justification, to accept an offer of settlement whether in the form of an offer under rule 14.10 or some other offer to settle or dispose of the proceeding; or

(g)some other reason exists which justifies the court refusing costs or reducing costs despite the principle that the determination of costs should be predictable and expeditious.

[5]                 Mr King for the respondent submits that costs should not be awarded, or at least reduced by 60 per cent, because:

(a)The appellant’s counterclaim in trespass, although successful, has not attracted damages.

(b)There were 11 grounds of appeal but I based my decision on three.

(c)The appellant’s conduct at the trial in the District Court in relation to its trespass counterclaim was unreasonable.

(d)The appellant rejected a Calderbank offer which would (inter alia) have required the appellant to pay the respondent $20,000.

(e)The appellant was potentially defamatory of the respondent in its statements to news media.

(f)There is new evidence that I was wrong to find that the respondent had no right to access her rented property by using the appellant’s carpark. An application for leave to appeal to the Court of Appeal has been filed.

[6]                 In my view, neither singly nor in combination do these grounds justify a change in the usual practice of awarding costs to the successful party. That is mostly self- evident. I add that in regard to [5](c) the details given of unreasonable conduct do not demonstrate conduct which should reduce an award of costs.

[7]                 However, despite the concession from the respondent that she does not oppose the appellant’s calculation of costs, I find that the total sought is too high.

[8]                 This was a claim in nuisance at a minor level (the damages awarded in the District Court amounted to $10,000) with a counterclaim in trespass. It did not justify second counsel in the District Court. I reduce costs by the $5,730 claimed. The appellant also seeks $1,195 for preparing its memorandum as to costs. Costs on costs are not usually granted.

[9]The reduced claim is $48,708.67.

Decision

[10]I award costs to the appellant in the sum of $48,708.67.

Brewer J