Utatao v Bishop Warden Limited

[2019] NZHC 2546

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-2857

[2019] NZHC 2546

UNDER

section 124 of the District Courts Act 2016

IN THE MATTER

of an appeal against the decision of His Honour, G M Harrison DCJ on 10 December 2018 (CIV-2018-004-000346; [2018] NZDC

25254)

BETWEEN

MATHEW KEITH UTATAO

Appellant

AND

BISHOP WARDEN LIMITED

Respondent

Hearing:	On the papers
Appearances:	P F Chambers for the Appellant N S Tabb for the Respondent
Judgment:	7 October 2019

JUDGMENT OF GORDON J

[As to costs]

This judgment was delivered by me  on 7 October 2019 at 4 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors:           Henley-Smith Law, Auckland

N Tabb, Auckland

Counsel:            P F Chambers, Auckland

UTATAO v BISHOP WARDEN LTD [2019] NZHC 2546 [7 October 2019]

[1]    By judgment dated 12 July 2019, I dismissed Mr Utatao’s appeal against the decision of a District Court Judge granting an application for summary judgment against him in favour of the respondent, Bishop Warden Ltd (Bishop Warden).1

[2]    I reserved costs, indicating my preliminary view that Bishop Warden was entitled to costs on a 2B basis.2 I directed that if the parties were able to agree costs, they were to file a joint memorandum within 15 working days of the date of the judgment. In the event that agreement could not be reached, separate memoranda were to be filed.3

[3]    Ms Tabb, for Bishop Warden, filed a memorandum dated 11 August 2019 advising the Court that it had not been possible to agree costs or file a joint memorandum. She sought costs on behalf of Bishop Warden on a 2B basis as follows:

Item 53 response to appeal	0.5 days
Item 54 and item 10 case management preparation	0.4 days
Item 54 and item 11 case management filing memo	0.4 days
Item 54 and item 13 case management appearance	0.3 days
Item 56 preparation of written submissions	3.0 days
Item 57 appearance at hearing	0.25 days
Item 29 sealing order	0.2 days
Total 5.05 days at $2,230 = $11,261.50
Plus disbursements - $50 sealing fee = $11,311.50

[4]    Mr  Chambers, for Mr Utatao, advised the  Court informally by email on     14 September 2019 that he had been unable to take instructions on costs. I therefore proceed on the basis of the memorandum on behalf of Bishop Warden.

1      Utatao v Bishop Warden Ltd [2019] NZHC 1633.

2 At [61].

3 At [61].

The law

[5]    Costs are at the discretion of the Court.4 The High Court Rules 2016 provide guidance as to how the discretion might be exercised.5

[6]    The general principle is that the party who fails with respect to a proceeding should pay costs to the successful party.6 When applying the scale costs regime, the Court must consider each formal step individually for the purposes of assessing the appropriate time band. A blanket approach is not appropriate.7

[7]    Ultimately, the overriding consideration when exercising the discretion to award costs is that any award ought to do justice between the parties.8

Decision

[8]    There is nothing in the circumstances of this case that would rebut the presumption that Bishop Warden, which successfully defended the appeal, is entitled to costs.

[9]    I award costs and disbursements in the sum of $11,311.50 as sought, in favour of Bishop Warden against Mr Utatao (being costs of $11,261.50 and a sealing fee of

$50). This sum may be satisfied (in part) by payment of the sum the Court holds as security for costs.

Gordon J

4      High Court Rules 2016, r 14.1(1).

5      Rules 14.2–14.7.

6      Rule 14.2(1)(a).

7      Paper Reclaim Ltd v Aotearoa International Ltd [2007] NZCA 544 at [35].

8      Packing In Ltd (in liq) v Chilcott (2003) 16 PRNZ 869 (CA) at [5].