SPRING v BROWNE [2022] NZHC 1206

SPRING v BROWNE [2022] NZHC 1206 [27 May 2022]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2021-404-000992[2022] NZHC 1206BETWEEN MARC ROBERT SPRINGPlaintiffAND CORY DAVID BROWNEFirst DefendantGLENN CHARLES TULLOCHSecond DefendantHearing: On the papersAppearances: Plaintiff in PersonJ Evans for the DefendantsJudgment: 27 May 2022COSTS JUDGMENT OF ASSOCIATE JUDGE GARDINERThis judgment was delivered by me on 27 May 2022 at 11.30 a.m.pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate.......................................Solicitors:Hayman Lawyers, Wellington[1] In a judgment delivered on 22 February 2022, I dismissed the defendants'interlocutory application for an order for security for costs against Marc Spring.1[2] Mr Spring, who represented himself at the hearing, requests an order that thedefendants pay the disbursements he incurred defending the application. These are:(a) the filing fee of $110;(b) $1,856.25 for professional legal assistance provided by "NZ Legal";(c) $8,372 for expert accounting advice and evidence from Gilligan Rowe& Associates.[3] The defendants do not object to an order that they pay the filing fee. Theyobject to (b) on the basis that under r 14.12(2)(c) and (d) of the High Court Rules 2016,a disbursement claimed must be "reasonably necessary for the conduct of theproceeding" and "reasonable in amount". The defendants submit that the invoice ofNZ Legal is not "reasonable in amount". In terms of (c), they maintain that an affidavitfrom an accountant was not "reasonably necessary for the conduct of the proceeding"and the cost charged is not "reasonable in amount".[4] As regards the invoice from NZ Legal, this organisation is not a law firm ableto provide legal advice or services. It appears to have provided services in the formof preparing the Court documents required by Mr Spring to defend the interlocutoryapplication, namely the notice of opposition, affidavits and written submissions.Overall, I do not consider $1,856.25 unreasonable for this service.[5] Regarding the charges of Gilligan Rowe & Associates, it is well settled thatfees and expenses of expert witnesses are a disbursement. However, the witnesses'expenses and fees must be necessarily incurred and reasonable.21 Spring v Browne [2021] NZHC 247.2 Air New Zealand Ltd v Commerce Commission [2007] NZCA 27.[6] I do not agree that it was unnecessary for Mr Spring to procure expert evidencefrom Mr Rowe. The defendants claimed that Mr Spring was impecunious andspecifically challenged his income and personal net worth. It was reasonable forMr Spring to file evidence from an expert accountant to verify, with reference tofinancial records, his financial position.[7] However, it is apparent from the invoice from Gilligan Rowe & Associates thatthe charges claimed relate to more than reviewing existing financial records andpreparing the expert affidavit. The services encompassed advising Mr Spring inrelation to the application, liaising with Mr Spring regarding his financial records, andto some extent, preparing the necessary financial information (for example,cost/income analysis for the Fiji business). The defendants should not pay for thesecosts.[8] Further, Mr Rowe's evidence is narrow in focus. In his affidavit he:(a) verified the 6 month income of Daytona Group Limited based on hisreview of the unaudited internal 6 monthly accounts; and(b) confirmed that Mr Spring had an ownership interest in the Fiji start-upcompany and suggested a valuation (without any evidence of the basisfor this valuation);(c) confirmed the personal bank deposits of Mr Spring and his partner.[9] I consider that a reasonable time period to review the financial recordsnecessary to give this evidence and prepare the affidavit to be eight hours rather than18.3 hours. Accordingly, Mr Spring will be awarded costs for this expert evidence foreight hours, at $400 per hour.Result[10] I order Cory David Browne and Glenn Charles Tulloch to pay Marc RobertSpring disbursements of $5,600.25, comprising:(a) $110 for the filing fee;(b) $1,856.25 for services provided by NZ Legal;(c) $3,634 for expert accounting and advice from Gilligan Rowe &Associates.3_____________________Associate Judge Gardiner3 Based on the following calculation using the invoice from Gilligan Rowe & Associates: Fee basedon time involved ($3,200) less allowance in this instance ($320) plus standard office servicescharge ($280) plus GST ($474) = $3,634.