Weingut Seifried Limited v Marr

[2021] NZHC 1583

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CIV-2020-442-55

[2021] NZHC 1583

UNDER

the High Court Rules

IN THE MATTER

of an easement to convey water and

electricity at 25 Redwood Road, Redwood Valley

BETWEEN

WEINGUT SEIFRIED LIMITED

First Applicant

JULIET CLAIRE WESTBURY, TERENCE JOHN WESTBURY and SANDRA ELLEN WESTBURY

Second Applicants

AND

JEFFREY RONALD MARR and SOPHIE MARR

Respondents

Hearing:	On the papers
Appearances:	RDJ Fitchett for the Applicants A G Stallard for the Respondents
Judgment:	30 June 2021

JUDGMENT OF GAULT J

(Costs)

This judgment was delivered by me on 30 June 2021 at 3:00 pm pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

……………………………………

WEINGUT SEIFRIED LTD v MARR [2021] NZHC 1583 [30 June 2021]

[1]                 The applicants seek costs and disbursements totalling $20,015 following resolution of this substantive dispute involving a claim of nuisance to the applicants’ easements by the disconnection of power.

[2]                 Mr Fitchett, for the applicants, submits that increased or indemnity costs are payable but, in the circumstances involving a lay litigant, seeks only scale costs on a 2B basis. Indeed, the costs (according to scale) plus disbursements are reduced from

$27,905 to reflect lower actual costs.

[3]                 Although Mr Marr represented himself, Mr Stallard filed a costs memorandum on behalf of the respondents. Mr Stallard accepts that costs normally follow the event but submits these proceedings are not ordinary in that the Court’s decision on the interim injunction application was largely made by consent because of the concessions made by the respondent(s). He submits the respondents took a responsible and cooperative attitude. He also submits the applicants put themselves in a position of having to deal with the respondent(s) because they failed to pay electricity invoices. Mr Stallard submits costs should lie where they fall as the applicants embarked on a course of action that was ultimately unnecessary.

[4]                 Interim orders were required even if Mr Marr did not oppose them on the teleconference held on a Pickwick basis. Even if the respondents took a cooperative approach, that also benefited them since costs would have only escalated if they had taken further steps to oppose. In any event, the general principle is that costs follow the event and the Court is normally reluctant to go behind the result and seek to assess the reasonableness of the parties’ respective positions based on costs memoranda. To do so is not appropriate here.

[5]                 I note the applicants’ scale calculation includes preparation for an interlocutory hearing and preparation of costs submissions. As to the former, Mr Fitchett acknowledges there was no interlocutory hearing as such – there was a teleconference in relation to a without notice application for interim injunction, with Mr Marr participating on a Pickwick basis. But preparation of submissions by memorandum was still required. Instead of excluding that preparation, I would have excluded the smaller separate items for preparation for teleconference(s) on 12 or 13 November

2020. As to the costs submissions, while the Court has power to award costs in relation to costs, costs are often dealt with by way of exchange of memoranda and the Court is reluctant to award costs on costs.1 But, as Mr Fitchett submits, even if these larger items are excluded (totalling $7,170), scale costs still exceed the amount claimed.

[6]                 However, in the circumstances, I do not consider that costs should include the case management steps subsequent to interim relief before the proceeding was finally resolved.

[7]                 Overall, I allow the applicants 2B costs for items 1, 12 (x1), 22, 24 and 30 plus disbursements totalling $18,823.

Result

[8]The respondents are to pay to the applicants costs and disbursements of

$18,823.

Gault J

Solicitors:

Mr RDJ Fitchett, Rout Milner Fitchett, Nelson Mr A G Stallard, Stallard Law Ltd, Nelson

1      Jeffreys v Morgenstern [2013] NZHC 1361 at [40]; Barry Park Investments Ltd v Body Corporate Number 95388 [2016] NZHC 1527 at [25]; Epsom Woods Ltd v Waitakere Farms Ltd [2020] NZHC 3137 at [4]; and Combined Property Maintenance Ltd v Singh [2021] NZHC 621 at [19].