Taylor aka Okan v Taylor-Davies

[2018] NZHC 2048

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-0075

[2018] NZHC 2048

IN THE MATTER

of an appeal pursuant to s 124 District Court Act 2016

BETWEEN

MARTIN SCOTT TAYLOR ALSO KNOWN AS TARADIVYAH OKAN

Appellant

AND

ROSEMARY LOUISE TAYLOR-DAVIES

First Respondent

MICHAEL JONATHAN DINEEN MARTIN SCOTT TAYLOR (AKA TARADIVYAH OKAN) WILLIAM DAVID CLARK REES AND LAURELIN MERETH OKAN as

executors in the Estate of PATRICIA PRUDENCE TAYLOR

Second Respondents

Hearing:

On the papers

Counsel:

P J Stevenson and R McLeod for the Appellant C Fisher for the First Respondent

S Barker for the Second Respondents
C Tataru for the Beneficiaries who have filed notice of intention to appear

Judgment:

10 August 2018

COSTS JUDGMENT OF MUIR J

This judgment was delivered by me on Friday 10 August 2018 at 3.30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar  Date:…………………………

Counsel/Solicitors:

P Stevenson, Barrister, Auckland  R McLeod, R McLeod & Associates, Auckland C Fisher, Fortune Manning, Auckland  S Barker, Buddle Findlay, Wellington

C Tataru, Simpson Grierson, Auckland

TAYLOR v TAYLOR-DAVIES [2018] NZHC 2048 [10 August 2018]

[1]                  The first respondent applies for costs in circumstances where, as a result of the appellant’s failure to make timely payment of security, his appeal from the District Court was abandoned by operation of law.1 Submissions in opposition and reply have been filed.

[2]                  That failure to make payment was only identified (by Registry staff) shortly before the hearing of the appeal. By that time over four months had elapsed since the due date during which period the parties had:

(a)Sought and obtained orders that the original hearing date for the appeal be vacated and a new date allocated; and

(b)prepared and filed submissions on the appeal.

[3]                  When the failure was notified to counsel for the appellant, the appellant’s initial instructions were to apply for an extension of time to bring the appeal. I indicated that, in the event of consent to such application, I would continue to hear the appeal on the scheduled date (7 August 2018). Ultimately, the appellant decided not to proceed with such an application.

[4]The respondent now seeks costs on a 2B basis for the following steps:

Step	Narration	Allocated days	Costs
53	Commencement of response to appeal	0.5	$1,115.00
56	Preparation of written submissions	3.0	$6,690.00
Total			$7,895.00

[5]                  The application is premised on what are stated to be “wasted costs” reflecting the approach adopted by Heath J in analogous circumstances in Graham v Mills.2

1      District Courts Act 2014, s 126(3). See generally Seimer v Heron [2011] NZSC 133 at [38] and [39]. The second respondents took no steps in relation to the appeal.

2      Graham v Mills [2006] NZFLR 282. In that case his Honour held that there was a discretion under r 6 to extend time for payment of security but declined to exercise it. Steps had in the interim been taken. His Honour’s recognition of a discretion to extend time must now be read subject to the Supreme Court’s observations in Seimer.

[6]                  The appellant does not oppose the costs sought in relation to item 53 – commencement of response (which were incurred prior to the abandonment), but submits that in exercise of my overarching discretion as to costs under r 14.1 I should reduce the allowance for item 56 – preparation of submissions (which occurred after abandonment), by 50 per cent.

[7]                  I note at the outset that such discretion is not unfettered and is qualified by the specific rules in rr 14.2 to 14.10. Rule 14.7 does, however, provide for a reduction in costs in identified circumstances or where:

(g) some other reason exists which justifies the court refusing costs or reducing costs despite the principle that the determination of costs should be predictable and expeditious.

[8]                  In reality the appellant’s submission involves an invitation to hold the first respondent at least part responsible for the wasted costs which occurred on the basis that there was, in fact, no need for her to do anything after the due date for payment of security, other than perhaps to note by way of memorandum that the appeal had been abandoned as a matter of law.

[9]                  I accept that at any time after the due date for payment the first respondent could have sought confirmation from the Court that security had been paid and, as observed by Heath J in Graham,3 on learning that it had not, is unlikely to have taken further steps. Unlike the “wasted costs” frequently granted in the case of an adjournment, those associated with preparation of the first respondents’ submissions could therefore have been readily avoided – probably with one telephone inquiry. However, I am conscious also that payment of security is an appellant responsibility and there is no express obligation on the part either of the Court or a respondent to monitor compliance.

[10]              Although in Graham costs and disbursements incurred in relation to the appeal process were allowed without deduction there does not appear to have been any submission to the contrary and I do not therefore consider myself bound by it in terms of the ultimate discretion I am called upon to exercise.

3 At [25].

[11]              I accept the appellant’s submission that if a respondent takes steps which it was not only under no obligation to do, but which in fact represented steps in a non-existent proceeding, it is appropriate to exercise my residual discretions under rr 14.1 and 14.7 to reduce costs. I consider his proposal to do so by 50 per cent fair in all the circumstances, applying the element of “robust justice” often necessarily called upon in the costs context.

Result

[12]I allow costs in favour of the respondent in the amount of $4,460.00

Muir J