Percy v Sovereign Assurance Company Limited

[2012] NZHC 1712

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2011-404-3555 [2012] NZHC 1712

BETWEEN  DAVID JOSEPH PERCY Plaintiff

ANDSOVEREIGN ASSURANCE COMPANY LIMITED

Defendant

Hearing:         (On the papers)

Counsel:         G H J Brant for the Plaintiff

C Meechan and A Borchardt for the Defendant

Judgment:      16 July 2012

COSTS JUDGMENT OF GILBERT J

This judgment was delivered by me on 16 July 2012 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:

PERCY V SOVEREIGN ASSURANCE HC AK CIV 2011-404-3555 [16 July 2012]

[1]     The defendant seeks costs against the plaintiff following the plaintiff’s discontinuance of his claim on the morning of the second day of the trial, which had been scheduled for eight days.  The plaintiff does not dispute that the defendant is entitled to costs.  He does not dispute the category 2B costs calculations supplied by the defendant nor does he oppose the costs sought by the defendant for its experts. The only issue is whether the defendant is entitled to an uplift on scale costs.

[2]      The  defendant  relies  on  rule  14.6(3)(d)  of  the  High  Court  rules  which provides:

The Court may order a party to pay increased costs if –

…

(d) some other reason exists which justifies the court making an order for increased costs despite the principle that the determination of costs should be predictable and expeditious.

[3]      The defendant submits that the Court should exercise its discretion to make an order for increased costs in this case because the plaintiff acted unreasonably by discontinuing his claim on the second day of the trial without any adequate explanation. The only explanation given was that the plaintiff wished to “recalibrate” his case.   The defendant points out that there had been two case management conferences and a judicial settlement conference and therefore ample opportunity for the plaintiff to “calibrate” his case properly.

[4]      Ms  Meechan,  for  the  defendant,  drew  attention  to  the  observations  of

Venning J in Fu Hao Construction Limited v Landco Albany Limited[1]:

A fixture of two weeks in duration is a major commitment of limited judicial and Court resources.  The time is booked for the case.  Other parties who might otherwise have had their cases allocated hearing time in that two week period are disadvantaged by the plaintiff’s default.   That in my view falls into the category of some other reason justifying the Court making an order for increased costs under rule 48C(3)(a).  There must be some sanction for the plaintiff’s default.

[1] Fu Hao Construction Limited v Landco Albany Limited HC Auckland CIV-2004-404-006608,

23 May 2008 at [10].

[5]      The  defendant  had  prepared  briefs  of  evidence  for  the  nine  witnesses  it intended to call and had arranged for these witnesses to be available to give evidence

at the trial.  Ms Meechan submitted that in these circumstances, there ought to be some  sanction  for  the  unjustified  and  unexplained  waste  of  time  and  judicial resource and that this should be reflected by an increased costs award.

[6]      Mr Brant, for the plaintiff, submitted that the plaintiff had acted reasonably on the basis that he “was not satisfied that he had properly captured the nuance of the court  issue  to  be  resolved  by  the  Court  and  encapsulate  that  succinctly”.    He submitted that in all other respects the plaintiff had acted and behaved reasonably and had met timetable directions. This is not disputed by the defendant.

[7]      In my view, this is a proper case for an order for increased costs to be made. The plaintiff must take responsibility for failing to “calibrate” his case correctly prior to the commencement of trial.   This should have occurred well in advance of the trial, prior to the case being set down for hearing.   The plaintiff’s decision to discontinue his claim on the morning of the second day of an eight day trial has caused unnecessary cost and inconvenience and is also wasteful of judicial and Court resources.  In my view, the uplift of 20 percent on Category 2B costs sought by the defendant is appropriate.

[8]      There  being  no  challenge  to  the  calculation  of  costs  submitted  by  the defendant, I accordingly enter judgment for the defendant against the plaintiff for costs calculated on a category 2B basis with a 20 percent uplift being costs in the

sum of $53,978.00, disbursements of $359.58 and expert fees of $15,042.58.

M A Gilbert J

Counsel:            C Meechan, Auckland:                 [e-mail]

A Borchardt, Auckland:                [e-mail]’

Solicitors:           Stace Hammond, Hamilton:           [e-mail]: [e-mail]