Reid v Carterton Auto Court Limited t/a McKenzie Motors

[2014] NZHC 3064

IN THE HIGH COURT OF NEW ZEALAND MASTERTON REGISTRY

CIV-2010-435-120 [2014] NZHC 3064

UNDER

the Judicature Act 1908, the Judicature

Amendment Act 1972, the Declaratory Judgments Act 1908, the Credit (Repossession) Act 1997, the Land Transfer Act 1952, the Crimes Act 1961, the Trustee Act 1956 and the New Zealand Bill of Rights Act 1990

IN THE MATTER OF

the judicial review of judgments of the Masterton District Court Registrar and the Masterton High Court Sheriff

BETWEEN

JAMES ROBERT REID and GRAEME FREDERICK HALE as trustees of THE FREDERICK FRANK TRUST Applicants

AND

CARTERTON AUTO COURT LIMITED

trading as MCKENZIE MOTORS First Respondent

On papers
Judgment:	3 December 2014

JUDGMENT OF DOBSON J (Costs)

[1]      My substantive judgment in this proceeding dismissed all elements of the applicants’ claims.1    In form, the claims were pursued as an application for judicial review, but in substance they were an attempt to re-visit the claimed liability that the first respondent had for allegedly dealing unlawfully with a motor vehicle that had

been repossessed from the applicant trust.

1      Reid v Carterton Auto Court [2014] NZHC 2372.

REID v CARTERTON AUTO COURT LTD [2014] NZHC 3064 [3 December 2014]

[2]      Subsequent to delivery of my judgment, I have received memoranda as to costs.

[3]      For the first respondent, Mr Lakshman sought costs on a category 2B basis. [4]      Mr Reid has submitted that costs ought to lie where they fall on the basis that:

·    the litigation was justified;

·    the first respondent filed briefs of evidence just prior to the due date; and

·the first respondent served copies of case law and written submissions on the last day of the hearing, making it difficult for Mr Reid, as a self-represented litigant, to respond.

[5]      Mr Reid also cast aspersions on Mr McKenzie’s character and  sought  to re-argue the issue of whether the first respondent’s dealings were regulated by the Credit (Repossession) Act 1997.  Such matters do not pertain to costs and have no relevance to this application.

[6]      I am satisfied that none of the matters raised by Mr Reid justify a departure from the general principle that costs follow the event.  The first respondent, having been successful in defending the claim, is entitled to costs.

[7]      As to the quantum of costs, Mr Reid submitted that the proceedings ought to be placed in category 1: proceedings of a straightforward nature able to be conducted by counsel considered junior in the High Court.

[8]      I am satisfied that category 2 is appropriate. The amended statement of claim made allegations of fraud that required a careful analysis of the facts and the law. Moreover,   the   imprecise   nature   of   the   proceedings,   and   the   somewhat unconventional conduct of self-represented litigants meant the proceedings were of average complexity requiring counsel of skill and experience considered average in the High Court.

[9]      Turning to the appropriate banding, the first respondent has claimed costs for a number of steps in the proceeding, including:

(a)       Step 2: commencement of defence; (b) Step 30: preparation of briefs; and (c)     Step 33: preparation for hearing.

[10]     The total allowance for these three steps is seven and a half days.  While the statement of claim and submissions prepared by Mr Reid were difficult to respond to, the full allowance provided by band B for these steps is not justified.  The time allowed for steps 2, 30 and 33 is adjusted accordingly to five and a half days. Band B is appropriate in relation to the remaining steps.  The first respondent is also entitled to disbursements, which are to be fixed b the Registrar.

Result

[11]     Subject to the above reduction in time allowed, the applicants are jointly and severally liable to pay costs to the first respondent on a 2B basis (in accordance with Schedule 1 attached to the first respondent’s submissions on costs), plus disbursements as fixed by the Registrar.

Dobson J

Solicitors:

Ainslie Hewton, Masterton for first respondent

Counsel:

K Lakshman, Wellington

Copy to: J R Reid