WOODGATE AND MURCOTT AS TRUSTEES OF THE EAW TRUST V PAPWORTH AND ORS HC HAM CIV 2008-419-129
The order striking out the third party claim entitles the successful party to all costs reasonably incurred in defending that claim; costs may be assessed on category 2B with an uplift for unnecessary conduct, but the final award is limited to the actual reasonable costs incurred; accordingly Mr Bryce was ordered to...
Source-derived case information.
- Citation
- openlaw-f317c9ce_6062_43f7_801d_9b6065564e53.pdf
- Parties
- Plaintiff: Elizabeth Anne Woodgate and Lloyd Harvey Murcott as Trustees of the EAW Trust; First Defendant: Steven John Papworth; Second Defendant: Mary Anne Sylvia Papworth; Third Defendant: Marshall Bryce; Fourth Defendant: Waikato District Council; First Third Party: Ross Brown; Second Third Party: Anthony Norman Sayer
- Court
- High Court
- Jurisdiction
- New Zealand
- Judgment Date
- 1 May 2009
- Procedural Posture
- High Court Civil Proceeding Third Party Claim Strike Out and Costs / Costs Judgment Following Strike Out Application
- Outcome
- Judgment entered for Anthony Norman Sayer against Marshall Bryce for costs and disbursements following strike out of the third party claim
- Legal Topics
- Striking Out, Third Party Claim, Costs Follow the Event, Scale 2 B, 50% Uplift, Disbursements, Failure to Amend Pleading
Source-derived case record
Summary, issues, holding and outcome
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Parties
Elizabeth Anne Woodgate and Lloyd Harvey Murcott as Trustees of the EAW Trust
Plaintiff
Steven John Papworth
First Defendant
Mary Anne Sylvia Papworth
Second Defendant
Marshall Bryce
Third Defendant
Waikato District Council
Fourth Defendant
Ross Brown
First Third Party
Anthony Norman Sayer
Second Third Party
Procedural Posture
High Court Civil Proceeding Third Party Claim Strike Out and Costs / Costs Judgment Following Strike Out Application
Legal Issues
- 1 Whether an order for costs 'on this application' striking out a third party claim extends to all costs of the proceeding incurred in defending the claim
- 2 Whether costs should be assessed on scale (category 2B) with a 50% uplift for unnecessary conduct
- 3 Whether an award on scale plus uplift can exceed actual costs incurred
Ratio Decidendi
The order striking out the third party claim entitles the successful party to all costs reasonably incurred in defending that claim; costs may be assessed on category 2B with an uplift for unnecessary conduct, but the final award is limited to the actual reasonable costs incurred; accordingly Mr Bryce was ordered to pay Mr Sayer's actual costs of $11,589.36 and disbursements of $690.
Court Disposition
Judgment entered for Anthony Norman Sayer against Marshall Bryce for costs and disbursements following strike out of the third party claim
Orders
- Marshall Bryce to pay Anthony Norman Sayer costs of $11589.36 (actual costs)
- Marshall Bryce to pay Anthony Norman Sayer disbursements of $690
Full Case Text
Judgment text and source record
1 paragraphs
WOODGATE AND MURCOTT AS TRUSTEES OF THE EAW TRUST V PAPWORTH AND ORS HC HAM CIV 2008-419-129 1 May 2009IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY CIV 2008-419-129BETWEEN ELIZABETH ANNE WOODGATE AND LLOYD HARVEY MURCOTT AS TRUSTEES OF THE EAW TRUST Plaintiff AND STEVEN JOHN PAPWORTH First Defendant AND MARY ANNE SYLVIA PAPWORTH Second Defendant AND MARSHALL BRYCE Third Defendant AND WAIKATO DISTRICT COUNCIL Fourth Defendant AND ROSS BROWN First Third Party AND ANTHONY NORMAN SAYER Second Third Party Judgment: 1 May 2009COSTS JUDGMENT OF HARRISON J_________________________________________________________________________________ SOLICITORS Gaze Burt (Albany) for Third Defendant Victoria Whitfield (Hamilton) for Second Third Party[1] I refer to my judgment delivered on 24 April 2009 striking out a third party claim issued by Mr Bryce against Mr Sayer. [2] I added:[25] Costs must follow the event. Mr Bryce is ordered to pay Mr Sayer's costs on this application according to category 2B together with a 50% uplift to take account of the unnecessary cost incurred as a consequence of Mr Bryce's failure to take any steps to file an amended pleading when Ms Whitfield drew Mr Dillon's attention to the plain defects in the existing statement of claim in January 2009.[3] Ms Whitfield filed a memorandum on 28 April 2009 calculating Mr Sayer's costs on a category 2B basis with a 50% uplift at $17,040. However, Mr Sayer's actual costs are $11,589.36 excluding disbursements of $690. I commend Ms Whitfield for her responsible advice. It follows that the maximum possible award for costs is the amount of Mr Sayer's actual costs. [4] Mr Dillon filed a memorandum for Mr Bryce on 30 April 2009 calculating Mr Sayer's costs on the application at $4,320. His calculation is restricted to the four steps of filing the application, preparation for hearing, appearance and sealing an order. By contrast, Ms Whitfield has claimed for all earlier steps taken by Mr Sayer in the proceeding including filing a statement of defence, preparing a list of documents, producing documents for inspection, and appearing at case management conferences. Additionally she seeks to recover for the items accepted by Mr Dillon. [5] In my judgment Ms Whitfield is correct. The order made on 24 April 2009 to pay costs on 'this application' striking out the claim must extend to all the costs of the proceeding incurred by Mr Sayer in defending the claim. Judgment is entered for Mr Sayer against Mr Bryce for costs of $11,589.36 together with disbursements of $690. ______________________________________ Rhys Harrison J