ERCEG v ERCEG [2015] NZHC 918

ERCEG v ERCEG [2015] NZHC 918

Proceeding involved novel and conceptually complex issues warranting Category 3 treatment for preparation of written submissions; therefore written submissions are assessed at band C while other steps are assessed at band B; increased costs uplift was not justified for late affidavits or a revised protocol but a 10% uplift was justified for a new substantial argument raised for the first time in reply; disputed disbursements (NZLS library fees and expert report additional work) were reasonable and allowed.

Citation
[2015] NZHC 918
Parties
Plaintiff: Ivan Vladimir Joseph Erceg; First Defendants: Lynette Therese Erceg and Darryl Edward Gregory (trustees of the Acorn Foundation Trust); Defendants: Lynette Therese Erceg and Darryl Edward Gregory (trustees of the Independent Group Trust)
Court
High Court
Jurisdiction
New Zealand
Judgment Date
5 May 2015
Procedural Posture
Summary Judgment Application and Strike‑out Applications; Costs Assessment / Costs Application Following Judgment on Summary Judgment (assessment and Allocation)
Outcome
Costs awarded to the defendants with allocations and adjustments as specified; leave reserved to recalculate and file further memoranda if required.
Legal Topics
Disclosure of Trust Documents, Property Under Insolvency Act 2006, Summary Judgment, Costs Banding, Costs Uplift for Late or New Arguments
Trusts Insolvency Civil Procedure Costs Disclosure of Documents Disclosure of Trust Documents Property Under Insolvency Act 2006 Summary Judgment Costs Banding +1 more

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Parties

Ivan Vladimir Joseph Erceg

Plaintiff

Lynette Therese Erceg and Darryl Edward Gregory (trustees of the Acorn Foundation Trust)

First Defendants

Lynette Therese Erceg and Darryl Edward Gregory (trustees of the Independent Group Trust)

Defendants

Procedural Posture

Summary Judgment Application and Strike‑out Applications; Costs Assessment / Costs Application Following Judgment on Summary Judgment (assessment and Allocation)

Legal Issues

  1. 1 appropriate classification of the proceeding for costs banding
  2. 2 whether preparation of submissions and bundles should be assessed at band C or band B
  3. 3 whether increased costs (uplift) should be awarded for late affidavits, late protocol and new arguments in reply

Ratio Decidendi

Proceeding involved novel and conceptually complex issues warranting Category 3 treatment for preparation of written submissions; therefore written submissions are assessed at band C while other steps are assessed at band B; increased costs uplift was not justified for late affidavits or a revised protocol but a 10% uplift was justified for a new substantial argument raised for the first time in reply; disputed disbursements (NZLS library fees and expert report additional work) were reasonable and allowed.

Court Disposition

Costs awarded to the defendants with allocations and adjustments as specified; leave reserved to recalculate and file further memoranda if required.

Orders

  • Defendants awarded costs; costs to be recalculated by counsel in accordance with the judgment
  • Proceedings classified so that preparation of written submissions assessed at band C