L CHAN V THE SEYIP ASSOCIATION OF NEW ZEALAND INCORPORATED HC WN CIV 2006-485-558

L CHAN V THE SEYIP ASSOCIATION OF NEW ZEALAND INCORPORATED HC WN CIV 2006-485-558 23 July 2008IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV 2006-485-558UNDER Part 4A of the High Court Rules AND UNDER the Incorporated Societies Act 1908 IN THE MATTER OF The Seyip Association of New Zealand Incorporated BETWEEN LAYWOOD CHAN Applicant AND THE SEYIP ASSOCIATION OF NEW ZEALAND INCORPORATED Respondent Judgment: 23 July 2008 at 4.00 pmJUDGMENT AS TO COSTS OF ASSOCIATE JUDGE D.I. GENDALLThis judgment was delivered by Associate Judge Gendall on 23 July 2008 at 4.00 p.m. pursuant to r 540(4) of the High Court Rules 1985.Solicitors: Lower Hutt Law Centre, PO Box 30 619, Lower Hutt Crown Law, PO Box 2858, Wellington K. Lakshman, PO Box 13373, Johnsonville[1] On 14 May 2008 the plaintiff and defendant filed in this Court a Notice of Discontinuance of this proceeding which stated at paragraph [2]:"[2] Each party will bear its own costs."[2] Notwithstanding that the substantive proceeding between the parties is discontinued, the Registrar of Incorporated Societies ("the Registrar") now seeks costs from the plaintiff with respect to a matter which arose subsequent to the issue of this proceeding. [3] On 24 March 2006 the plaintiff filed his statement of claim in this proceeding against the defendant. Then, on 18 July 2007, the plaintiff brought an application to join the Registrar as second defendant to this proceeding. [4] On 21 August 2007 the Registrar filed a Notice of Opposition to this joinder application. [5] That application was heard before me on 10 October 2007. In a decision I gave on 18 October 2007 I refused the plaintiff's application for joinder. [6] At paragraph [30] of that 18 October 2007 judgment I noted:"[30] As to costs on the present application, if they are in issue between the parties and counsel are unable to resolve that matter between themselves then memoranda may be filed sequentially on this issue and in the absence of either party indicating that they wish to be heard on the matter, I will decide the question of costs on the basis of the material filed."[7] It seems clear that the parties have been unable to resolve this costs question.[8] Thus, on 11 June 2000, counsel for the Registrar filed a memorandum seeking costs from the plaintiff on an increased Category 2B basis totalling $5,620.00. [9] On 17 July 2008 counsel for the plaintiff filed his reply memorandum as to costs. Those memoranda have now been referred to me. Neither party has indicated that they wished to be heard further on the question of costs. I now give my decision on this issue. [10] Paragraph 1 of the memorandum from counsel for the plaintiff states:"1. The plaintiff accepts that the Registrar is entitled to costs but the plaintiff disagrees with the amounts claimed."[11] This comment is in light of the Registrar being successful in opposing the plaintiff's joinder application. As such, there is little doubt that he is entitled to an award of costs here. The only outstanding question is the level of those costs. [12] On this, at paragraph 2 of his 17 July 2008 memorandum, counsel for the plaintiff agrees that broadly costs here can be assessed on a Category 2B basis. The issue raised here however appears to relate to the quantum of certain costs items which are sought by the Registrar. [13] I turn now to consider in turn each item of the Registrar's costs breakdown: (a) Filing memorandum for case management conference on 7 August 2007 – the Registrar claims .04 of a day in terms of Item 4.10 of the Third Schedule. On this, counsel for the plaintiff contends that the case management conference on 7 August 2007 was not sufficiently complex to justify 0.4 of a day and the Court should use its overall discretion to allow only 0.2 of a day for that matter. It is clear however that Item 4.10 of the Third Schedule provides for 0.4 of a day to be the appropriate allocation for a case management memorandum in Category 2B proceedings. I see no reason here whyany reduction in this allocation, an allocation which is in accordance with the High Court scale, should be made. This item at 0.4 of a day, totalling $640.00 is approved. (b) Appearance at a case management conference on 7 August 2007 under Item 4.11 at 0.3 of a day totalling $480.00 is sought this is appropriate in terms of the scale and is approved. (c) Preparing and filing opposition to interlocutory application and supporting affidavits under Item 4.13 at 0.6 of a day totalling $960.00 is sought. Again, this is in accordance with the scale, is appropriate and it is approved. (d) Appearance at a case management conference on 28 August 2007 under Item 4.11 totalling 0.3 of a day - $480.00 is sought – again this is in accordance with the scale, is appropriate and approved. (e) Preparation for hearing of defended interlocutory application on 10 October 2007 under Item 4.14 totalling 0.25 of a day - $400.00 is sought and again is in accordance with the scale and is appropriate. This is approved. (f) Appearance at hearing of defended interlocutory application on 10 October 2007 under Item 4.15 totalling 0.25 of a day with $400.00 sought. This is linked to the next which is for 0.3 of a day totalling $480.00 sought by the Registrar for an appearance at a case management conference also on 10 October 2007 pursuant to Item 4.11 of Schedule 3. On these counsel for the plaintiff submits that the appearance at the hearing of the interlocutory application on 10 October 2007 and the case management conference on the same day should be treated as one. This is because the conference immediately followed thehearing and in total the time involved for both matters it is suggested should be no more than 0.25 of a day or at most 0.3 of a day. I agree that there is logic in this position advanced by the plaintiff. I approve therefore 0.3 of a day at $480.00 for both the hearing appearance on 10 October 2007 and the case management conference on that day. This effectively reduces the costs sought by the Registrar by some $400.00. [14] The next principal item of objection from the plaintiff is the Registrar's claim for $1,120.00 in respect of what the Registrar describes as "the Plaintiff's Appeal Naming the Registrar as Respondent."[15] On this, counsel for the plaintiff submits that no costs on the appeal at all are justified. This is on the basis he submits that there was no "appeal". The plaintiff says that in accordance with the Court's judgment of 18 October 2007 he filed a separate application under s. 21(3A) Incorporated Societies Act. The Court's judgment of 18 October 2007, it is suggested, did not specify which party or parties were to be named as respondent. Initially the plaintiff named the Registrar as the respondent and the application was served. There was then apparently a discussion between counsel and the plaintiff filed an amended application removing the Registrar as the respondent and instead naming the Seyip Association (the defendant) as respondent. Following that step the Registrar no longer had any status in the proceeding and was no longer a party. [16] Counsel for the plaintiff suggests that if the Registrar then chose to take an active interest in the proceeding, including wishing to participate in the directions telephone conference on 18 December 2007, then he must bear his own costs. He maintained it is untenable for the Registrar on the one hand to oppose any attempt to join him to the proceeding and then on the other seek to remain a party to it after he had succeeded in persuading the Court and the plaintiff that he should not be a party to it.[17] In my view there is some sense in this submission advanced by counsel for the plaintiff. Joinder of the Registrar to this proceeding was refused as a result of the judgment of this Court issued on 18 October 2007. [18] It follows in my view that the costs charge of $1,120.00 for work claimed by the Registrar for the case management conferences on 17 December 2007 and 18 December 2007 is not appropriate here. [19] Finally, the Registrar seeks increased costs generally calculated at $660.00 in accordance with Rule 48C(3)(b)(ii) on the grounds that the applicant in seeking joinder took an unnecessary step or pursued an argument without merit. [20] Although there must be some sympathy for the position in which the Registrar found himself in this matter, in my view, this is not an appropriate case for the imposition of increased costs. The Registrar is a public official charged with administering the system under which incorporated societies function. Although the plaintiff was mistaken in his belief that the Registrar should intervene here, I am satisfied he was genuine in his belief that this may have been appropriate. [21] The claim for increased costs of $660.00 is rejected. [22] In conclusion, the Registrar is now entitled to an award of costs against the plaintiff on a Category 2B basis and these are calculated as outlined above at a total of $3,440.00. An order to this effect is now made.'Associate Judge D.I. Gendall'