BANK OF NEW ZEALAND v DAVEY Costs Judgment [2021] NZHC 2122

BANK OF NEW ZEALAND v DAVEY Costs Judgment [2021] NZHC 2122 [13 August 2021]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECIV-2021-409-000046[2021] NZHC 2122BETWEEN BANK OF NEW ZEALANDPlaintiffAND MATTHEW ROBERT DAVEYDefendantHearing: On the papersCounsel: K M Paterson and C F Olds for PlaintiffC Lin for DefendantJudgment: 13 August 2021COSTS JUDGMENT OF ASSOCIATE JUDGE PAULSENThis judgment was delivered by me on 13 August 2021 at 4.00 pmpursuant to Rule 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:[1] On 16 July 2021, I entered summary judgment for the plaintiff (the Bank)against the defendant (Mr Davey). I provided my written reasons for doing so in ajudgment dated 21 July 2021.1[2] I awarded the Bank its solicitor-client costs as claimed by it, pursuant to theterms of the guarantee between it and Mr Davey upon which its claim was based.2 Idirected the Bank's counsel to submit a memorandum setting out the detail andquantum of the solicitor-client costs that were claimed.[3] On 23 July 2021, I received from the Bank's solicitors:(a) a memorandum of costs claimed by the Bank;(b) an affidavit as to the Bank's costs attaching copies of the Bank'ssolicitors' invoices (with narrations); and(c) a draft order for summary judgment for sealing.[4] On the same day, I issued a minute to counsel in which I drew counsels'attention to the principles in Black v ASB Bank Ltd,3 and directed the Bank to filefurther submissions addressing those principles by 3 August 2021. Mr Davey wasgiven until 10 August 2021 to file any objection to the quantum of the Bank's claimfor costs. On 2 August 2021, the Bank filed its memorandum. Mr Davey has not filedanything in opposition to the Bank's claim for costs by 10 August 2021.[5] The Bank's entitlement to solicitor-client costs has already been determined inmy judgment of 16 July 2021. What is in issue is whether the amount claimed by theBank is reasonably incurred.4[6] The amount that has been claimed by the Bank as solicitor-client costs is$62,500. This is exclusive of Goods and Services Tax. The Bank has also claimed1 Bank of New Zealand v Davey [2021] NZHC 1854.2 See also High Court Rules 2016, r 14.6(1) and (4)(e).3 Black v ASB Bank Ltd [2012] NZCA 384.4 Rule 14.6(1)(b) and Black v ASB Bank Ltd, above n 3, at [80].disbursements of $1,680.56. The amount is greater than scale costs but I consider itfair and reasonable. I note the following relevant factors:(a) The Bank's claim was large for an amount of more than $4,000,000including interest.(b) Factually the case was not straightforward involving a series of bankfacilities and a course of dealings spanning a number of years.(c) The claim was opposed by Mr Davey who made several applicationsfor further time to respond to the claim and for adjournments. He raisedmatters in defence that required comprehensive responses from theBank which were without merit but considerably added to the Bank'scosts.(d) I consider that upon a proper construction of the guarantee all tasksundertaken by the Bank's solicitors were reasonably necessary andattract a costs indemnity except in one respect which the Bank'ssolicitors have drawn to my attention. That has been more thanadequately accounted for by the substantial write-off provided by theBank in its costs claim.(e) On a time and attendance basis the fees of the Bank's solicitors wouldbe $89,910, but this has been reduced to $62,500 reflecting thecommercial relationship between the solicitors and the Bank and thatthe Bank is responsible for payment of the fees when there is nocertainty they will be recovered from Mr Davey.(f) The amount claimed reflects a total of 198 hours work by the Bank'ssolicitors at an average of $315 per hour. The time engaged and theaverage hourly charge-out rate is appropriate.(g) The Bank has put before the Court its solicitors' fee invoices which arefully narrated setting out the tasks undertaken.(h) While the hearing itself occupied a shorter period of time, it was setdown for a half day and the Bank's counsel had preparedcomprehensive yet focused submissions and was ready to proceed to afully defended hearing.(i) The disbursements claimed are for court filing fees, service agents' andsearch fees and are reasonable.Result[7] I fix the quantum of the Bank's costs on a solicitor-client basis in the amountof $62,500 along with disbursements of $1,680.56._______________________O G PaulsenAssociate JudgeSolicitors:Buddle Findlay, ChristchurchNorling Law Limited, Auckland