Spring v Browne

[2022] NZHC 1206

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-000992

[2022] NZHC 1206

BETWEEN

MARC ROBERT SPRING

Plaintiff

AND

CORY DAVID BROWNE

First Defendant

GLENN CHARLES TULLOCH

Second Defendant

Hearing:

On the papers

Appearances:

Plaintiff in Person

J Evans for the Defendants

Judgment:

27 May 2022

COSTS JUDGMENT OF ASSOCIATE JUDGE GARDINER

This judgment was delivered by me on 27 May 2022 at 11.30 a.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date.......................................

Solicitors:

Hayman Lawyers, Wellington

SPRING v BROWNE [2022] NZHC 1206 [27 May 2022]

[1]    In a judgment delivered on 22 February 2022, I dismissed the defendants’ interlocutory application for an order for security for costs against Marc Spring.1

[2]    Mr Spring, who represented himself at the hearing, requests an order that the defendants pay the disbursements he incurred defending the application. These are:

(a)the filing fee of $110;

(b)$1,856.25 for professional legal assistance provided by “NZ Legal”;

(c)$8,372 for expert accounting advice and evidence from Gilligan Rowe & Associates.

[3]    The defendants do not object to an order that they pay the filing fee. They object to (b) on the basis that under r 14.12(2)(c) and (d) of the High Court Rules 2016, a disbursement claimed must be “reasonably necessary for the conduct of the proceeding” and “reasonable in amount”. The defendants submit that the invoice of NZ Legal is not “reasonable in amount”. In terms of (c), they maintain that an affidavit from an accountant was not “reasonably necessary for the conduct of the proceeding” and the cost charged is not “reasonable in amount”.

[4]    As regards the invoice from NZ Legal, this organisation is not a law firm able to provide legal advice or services. It appears to have provided services in the form of preparing the Court documents required by Mr Spring to defend the interlocutory application, namely the notice of opposition, affidavits and written submissions. Overall, I do not consider $1,856.25 unreasonable for this service.

[5]    Regarding the charges of Gilligan Rowe & Associates, it is well settled that fees and expenses of expert witnesses are a disbursement. However, the witnesses’ expenses and fees must be necessarily incurred and reasonable.2

1      Spring v Browne [2021] NZHC 247.

2      Air New Zealand Ltd v Commerce Commission [2007] NZCA 27.

[6]    I do not agree that it was unnecessary for Mr Spring to procure expert evidence from Mr Rowe. The defendants claimed that Mr Spring was impecunious and specifically challenged his income and personal net worth.  It was reasonable for   Mr Spring to file evidence from an expert accountant to verify, with reference to financial records, his financial position.

[7]    However, it is apparent from the invoice from Gilligan Rowe & Associates that the charges claimed relate to more than reviewing existing financial records and preparing the expert affidavit. The services encompassed advising Mr Spring in relation to the application, liaising with Mr Spring regarding his financial records, and to some extent, preparing the necessary financial information (for example, cost/income analysis for the Fiji business). The defendants should not pay for these costs.

[8]Further, Mr Rowe’s evidence is narrow in focus. In his affidavit he:

(a)verified the 6 month income of Daytona Group Limited based on his review of the unaudited internal 6 monthly accounts; and

(b)confirmed that Mr Spring had an ownership interest in the Fiji start-up company and suggested a valuation (without any evidence of the basis for this valuation);

(c)confirmed the personal bank deposits of Mr Spring and his partner.

[9]    I consider that a reasonable time period to review the financial records necessary to give this evidence and prepare the affidavit to be eight hours rather than

18.3 hours. Accordingly, Mr Spring will be awarded costs for this expert evidence for eight hours, at $400 per hour.

Result

[10]   I order Cory David Browne and Glenn Charles Tulloch to pay Marc Robert Spring disbursements of $5,600.25, comprising:

(a)$110 for the filing fee;

(b)$1,856.25 for services provided by NZ Legal;

(c)$3,634 for expert accounting and advice from Gilligan Rowe & Associates.3

Associate Judge Gardiner

3      Based on the following calculation using the invoice from Gilligan Rowe & Associates: Fee based on time involved ($3,200) less allowance in this instance ($320) plus standard office services charge ($280) plus GST ($474) = $3,634.