McNaughton v Miller

[2022] NZHC 688

IN THE HIGH COURT OF NEW ZEALAND MASTERTON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKAORIORI ROHE

CIV-2021-435-1

[2022] NZHC 688

BETWEEN

RICHARD MCNAUGHTON

Plaintiff

AND

RODNEY MILLER

First Defendant

GARY KAY
Fourth Defendant

TAVERNER KEYS & CO

Fifth Defendant

Hearing:

On the papers

Appearances:

Plaintiff in person

D Bleier for defendants

Judgment:

5 April 2022

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

[Costs]

[1]        In my judgment dated 8 October 2021 I made an order for security for costs as sought by the three defendant parties.

[2]At para [27] of my judgment I said:1

Costs of this application are reserved. My preliminary view is that the first, fourth and fifth defendants, having been successful, are entitled to their costs of an incidental to this interlocutory application on a 2B basis, and that these should be fixed, but payable when the litigation in this Court has been concluded.

1      McNaughton v Miller [2021] NZHC 2688.

MCNAUGHTON v MILLER [2022] NZHC 688 [5 April 2022]

[3]        That, as I said, was a preliminary view. I reserved costs because I had not heard from the parties as to these and in case there was any information I was unaware of as at the date that the judgment was issued.

[4]        By joint memorandum dated 23 March 2022 the three remaining defendants invited me to fix costs and disbursements which they calculated on a 2B basis as follows:

(a)First defendant $9,059.64;

(b)Fourth defendant $8,799.45; and

(c)Fifth defendant $8,343.64.

[5]        I have reviewed these figures, by reference to the schedule attached to the defendants’ joint memorandum, and they appear to be accurate.

[6]        When the defendants’ joint memorandum was drawn to my attention, I directed the Registrar to ask the plaintiff, Mr McNaughton, for a response.

[7]He has now responded by memorandum dated 4 April 2022.

[8]        Mr McNaughton has declined to make any submission as to the quantum of the costs sought. His sole focus in his memorandum is on whether any order ought to be made at this stage. He says that he has appealed from my judgment. He attaches to his memorandum a copy of his submissions on appeal (which I have not read as nothing he says in advancing his appeal can affect this costs judgment).

[9]        Mr McNaughton’s essential submission is captured in his second paragraph which reads as follows:

The judgment of A J Johnson [sic] is currently before the Court of Appeal where it would be improper or premature to fix costs at this point.

[10]      The suggestion that it is wrong to award costs simply because the unsuccessful party has lodged an appeal is not correct. The fact of an appeal is no reason at all to

decline to deal with costs. Indeed, it is often important that the Court to which any appeal is made is aware of the costs so that it has the whole picture.

[11]      In the balance of his memorandum (para 3–8) Mr McNaughton focusses essentially on what he regards as the strong points of his case.

[12]      He does say that costs in this Court are a matter for the Court’s discretion, which is quite correct. However, the general rule is that costs will follow the event, that is to say that the successful party will secure a costs award. As to quantum, costs are determined according to the scales set out in the High Court Rules 2016 except in unusual circumstances. The circumstances of this case are not unusual, and neither parties suggests that they are.

[13]      In my view, the proper approach in this case is to award costs to the three remaining defendant parties as the successful parties. Because this was an application for security for costs that arose in the circumstances described in my judgment, I fix costs in favour of the three remaining defendant parties in the amounts recorded earlier but order that they be payable only at the conclusion of the litigation in this Court.

Associate Judge Johnston

Solicitors:

Gawith Burridge, Masterton for Defendants