WILLIAMS v DEGAN FARMS (BOP) LIMITED [2020] NZHC 2167

WILLIAMS v DEGAN FARMS (BOP) LIMITED [2020] NZHC 2167 [25 August 2020]IN THE HIGH COURT OF NEW ZEALANDTAURANGA REGISTRYI TE KŌTI MATUA O AOTEAROATAURANGA MOANA ROHECIV-2020-470-23[2020] NZHC 2167UNDER the District Court Act 2016, s 125IN THE MATTER of an appeal against a decision of the DistrictCourt granting summary judgmentBETWEEN JACK DANIEL WILLIAMS as trustee ofthe JACK WILLIAMS AND LAURENANDREWS FAMILY TRUSTAppellantAND DEGAN FARMS (BOP) LIMITED (alsoformerly known as TOKOROALANDSCAPING & TREE WORXLIMITED)RespondentHearing: On the papersCounsel: M B Beech for the AppellantR Butler for the RespondentJudgment: 25 August 2020JUDGMENT OF GAULT J(Costs)This judgment was delivered by me on 25 August 2020 at 3:00 pmpursuant to r 11.5 of the High Court Rules 2016.Registrar/Deputy RegistrarSolicitors / Counsel:Mr M B Beech, Barrister, TaurangaMr M Attwood (appellant's instructing solicitor), Burley Attwood Law, TaurangaMr R Butler, Barrister, AucklandMr T Refoy-Butler (respondent's instructing solicitor), Mackenzie Elvin Law, Tauranga[1] The respondent seeks costs following the appellant's discontinuance(abandonment) of an appeal against summary judgment in the District Court.The appellant accepts some liability for costs but disputes the amount claimed.The parties have been unable to agree.[2] Rule 20.12(2) preserves a respondent's right to apply for costs in the event anappellant abandons an appeal. While r 15.23 relating to costs on a discontinuance doesnot directly apply, a similar presumption in relation to costs on an abandoned appealis appropriate. In any event, I consider the respondent is entitled to costs in this case.[3] It is not disputed that costs should be awarded on a 2B basis. The respondent'scalculation totals $20,554 whereas the appellant calculates $9,321.[4] The appellant disputes the respondent's claim for its commencement ofresponse to appeal. I agree the costs schedule provides for 0.5 days rather than 1 day.[5] The appellant also disputes the claim for preparation for three first casemanagement conferences (3 x 0.4) on the basis that there should only be one. I agree.[6] The appellant disputes the respondent's 0.4 days for appearances at three casemanagement conferences. The schedule provides for 0.3 days for appearances at firstor subsequent case management conferences. The appellant also disputes that the27 May 2020 telephone conference should be categorised as a case managementconference rather than a mentions hearing or callover. I agree. This conference shouldbe allocated 0.2 days.[7] Finally, the appellant disputes the 3 days claimed for preparation of writtensubmissions due on 15 July 2020 on the basis that the discontinuance was signalled aweek earlier. Given that the appellant was seeking agreement on costs before filing anotice of discontinuance, it was reasonable for the respondent to continue to prepare.The respondent's counsel advised on 12 July 2020 that the respondent's submissionswere "largely finalised, subject to any specific response required to your client'ssubmissions". The appellant's submissions were due the following day. On 13 July2020 counsel for the appellant confirmed that the appellant would discontinue theappeal. I agree that the respondent is not entitled to the full allowance for submissionsbut in the circumstances I consider a partial allowance is appropriate. I allow 1.5 days.[8] Accordingly, the respondent is entitled to 2B costs for 5.4 days, totalling$12,906.Result[9] The respondent is entitled to costs of $12,906 plus disbursements as approvedby the Registrar under r 14.22.________________________________Gault J