Small (2005) Limited v Mahon

[2022] NZHC 2182

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-002333

[2022] NZHC 2182

BETWEEN

SMALL (2005) LIMITED

Plaintiff

AND

NEVILLE CHRISTOPHER MAHON

Defendant

Hearing:

(On the papers)

Counsel:

M Lenihan for Plaintiff/Applicant

R B Hucker and R F Selby for Defendant/Respondent

Judgment:

30 August 2022

COSTS JUDGMENT OF VENNING J

This judgment was delivered by me on 30 August 2022 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Brown Partners, Auckland

Hucker & Associates, Auckland

Counsel:            D Chisholm QC/M Lenihan, Auckland

SMALL (2005) LIMITED v MAHON [2022] NZHC 2182 [30 August 2022]

[1]    On 21 July 2022 the Court vacated the trial scheduled to commence on 1 August 2022 on the plaintiff’s application.1 At the same time the Court made the following order in relation to costs:2

Costs are reserved. The Court’s preliminary view is that the plaintiff should pay the costs of the adjournment. If counsel are unable to agree the defendant is to file and serve submissions in support of any application for costs by 12 August 2022, with the plaintiff to respond by 26 August 2022, and any reply by 2 September 2022. The costs will then be dealt with on the papers;

[2]    Counsel have conferred. They have agreed the wasted costs of the defendant’s experts at $14,904 including GST but are unable to agree on the scale solicitor/client costs to be awarded.

[3]    The defendant seeks costs in relation to a previous mention on 11 July, and costs on the costs memorandum itself. The principal difference between the parties is the defendant’s claim for 50 per cent of the costs of preparation for the hearing and a separate allowance of 50 per cent of the costs of preparation of briefs, authorities, and the common bundle. The plaintiff considers that the only wasted costs associated with preparation would be one-third of the costs for the preparation for hearing with nothing for the preparation of briefs, authorities and common bundle. In addition, the defendant seeks a 25 per cent uplift on the costs of preparation.

[4]    As the plaintiff properly concedes, the vacation of the fixture on its application was an indulgence and costs consequences follow.

[5]I address the issues that the parties are unable to agree on as follows.

The 11 July mention

[6]    The 11 July mention was convened at the plaintiff’s request. The plaintiff initially failed to comply with the directions of Associate Judge Sussock regarding the exchange of its witness statements. However, once the plaintiff had exchanged its witness statements, the defendant then also failed to exchange its witness statements

1      Small (2005) Ltd v Mahon [2022] NZHC 1762.

2      At [28](c).

in a timely fashion. While there was an exchange between counsel, the position was not resolved so that the plaintiff sought the hearing on 11 July.

[7]    I consider both parties to have a degree of responsibility for what occurred and what ultimately led to the need for the hearing on 11 July so that costs on that appearance should lie where they fall and should not, as the plaintiff categorises it, be “shoehorned” into the costs payable on the subsequent application for adjournment.

The preparation for trial

[8]    The principal difference between the parties is the costs sought by the defendant for 50 per cent of the preparation for trial and for preparation of briefs etc. The plaintiff submits that the defendant has not explained what aspect of the work done on briefs of evidence, list of issues, preparation of authorities, and agreeing a common bundle, will need to be redone. While further work may be required when the plaintiff’s briefs in response are filed, that is not a repeat of work already carried out so cannot be wasted costs. The plaintiff submits that costs calculated at 33 per cent of the preparation for trial generally is all that is appropriate.

[9]    While the defendant accepts that not all of the work in relation to preparation and the compilation of authorities, opening and closing submissions, and cross- referencing will not be lost, he says there will be additional work required to complete the submissions and other preparation for trial.

[10]   While I accept the point made by the plaintiff that not all of the work will be lost, inevitably there will be a duplication involved in revisiting and reviewing the work done by way of preparation for trial, including preparation of authorities and the common bundle etc, as well as the final preparation for trial. Given the timing of the application for adjournment, I consider the appropriate allowance to be 50 per cent for the costs of preparation for the hearing, and a 33 per cent allowance for the preparation of briefs, list of authorities, and agreeing the common bundle.

Uplift

[11]   The defendant seeks an uplift under High Court Rule 14.6(3)(b)(i) and (3)(d). An uplift under r 14.6 is discretionary. I do not consider this is a case which warrants an uplift. The increased costs under r 14.6(3)(b)(i) for failure to comply with the directions of the Court are adequately addressed in this case by the order for wasted costs. Both parties are prejudiced by vacation of the fixture and both have, to a degree, contributed to the situation that has arisen.

[12]   Nor is there any other reason under r 14.6(3)(d) for an increase. I disallow the application for increased costs.

Costs for the costs memoranda

[13]   Neither party has succeeded entirely on the outstanding cost issues. In the circumstances the defendant’s request for costs on the costs memorandum are not allowed. However, costs and disbursements associated with the sealing of the order (if necessary) will be payable.

Result

[14]   The plaintiff is to be pay the defendant costs on the adjournment application in the sum of $31,485.03 calculated as follows:

Filing opposition documents to plaintiff’s application for adjournment	$1,434.00
Attendance at telephone conference hearing on 21 July – 0.25 days	$597.50
Court filing fee on notice of opposition	$110.00
Preparation for the hearing – 7.25 days - $17,327.50 x 50 per cent	$8,663.75
Preparation of briefs, list of authorities and agreeing common bundle – $17,327.50 x .33	$5,775.78
$16,581.03
Expert witness costs as agreed	$14,904.00
TOTAL:	$31,485.03

[15]   In the event the plaintiff fails to pay the above sum to the defendant within 15 working days of the delivery of this judgment, the defendant is also to have additional costs of $528.00 associated with sealing the order for costs to enable any necessary enforcement.

Venning J