POLICY MANAGEMENT LIMITED V THE COLONIAL MUTUAL LIFE ASSURANCE SOCIETY LIMITED HC WN CIV-1996-485-01

POLICY MANAGEMENT LIMITED V THE COLONIAL MUTUAL LIFE ASSURANCE SOCIETY LIMITED HC WN CIV-1996-485-01 4 May 2006IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV-1996-485-01BETWEEN POLICY MANAGEMENT LIMITED Plaintiff AND THE COLONIAL MUTUAL LIFE ASSURANCE SOCIETY LIMITED Defendant Judgment: 4 May 2006 at 3.15pm In accordance with r540(4) I direct the Registrar to endorse this judgment with a delivery time of 3.15pm on the 4th day of May 2006.JUDGMENT AS TO COSTS OF ASSOCIATE JUDGE D.I. GENDALL[1] On 21 December 2005 I gave a Judgment on an application by the defendant in this proceeding to strike out the plaintiff's Statement of Claim for want of prosecution and/or failure to pay a security for costs award. [2] The application was successful, and an order was made striking out the plaintiff's claim. [3] At paragraph [77] of that 21 December 2005 Judgment I awarded costs to the plaintiff on a category 2B basis, together with disbursements as fixed by the Registrar. [4] The defendant has prepared a draft order and has submitted this to the Court. The order includes the defendant's calculation of its costs and disbursements in this matter. The defendant has itemised its costs calculated on a category 2B basis in Schedule 1 of the order. They total $8,120.00. The defendant has itemised its disbursements in Schedule 2 attached to the order and these total $2,263.49.[5] The plaintiff takes issue with two matters over the costs and disbursements claimed by the defendant: (1) As to the costs claimed by the defendant, whether it is appropriate to allow for the costs of a second counsel. (2) As to the disbursements claimed, whether it is appropriate to allow for travel costs from Auckland to a hearing in Wellington. [6] Counsel for the defendant has filed a memorandum as to the costs issue dated 7 April 2006. In turn, counsel for the plaintiff has filed his memorandum concerning costs dated 27 April 2006. Counsel for the defendant has filed a memorandum in response dated 1 May 2006. [7] Having considered those memoranda, I now set out my decision upon the two issues raised by the plaintiff.Allowance for cost of Second Counsel[8] The defendant in his schedule of costs attached to the draft order seeks costs of $1,450.00 for the appearance of second counsel at the hearing of the strike out application on 13 October 2005. [9] In my Judgment in this proceeding dated 21 December 2005 I did not certify for second counsel. [10] The strike out decision in question was an interlocutory application which the plaintiff contends was capable of being readily handled by one counsel, given that it involved the application of well-known principles. [11] As to claims for second counsel, in Nomoi Holdings Ltd v Elders Pastoral Holdings Ltd (2001) 15 PRNZ 155, Chambers J held that generally it was only in reasonably rare cases that awards of costs for second counsel would be appropriate in category 2 costs cases.[12] The present case involves an award of costs on a category 2B basis. [13] As I have noted above, there was no certification in my 21 December 2005 Judgment for second counsel. Under all the circumstances here, and given the nature of the application which was before me, I am satisfied that this is not one of those rare cases where it is appropriate for second counsel to be certified. [14] The defendant's claim to costs of $1,450.00 for appearance at the hearing of second counsel is therefore disallowed.Travel Costs[15] In its schedule of disbursements, the defendant has claimed airfares for two counsel from Auckland (at $552.50 each, totalling $1,105.00), taxis of $158.49 and accommodation charges of $360.00. [16] The plaintiff opposes this and says that some time ago the defendant instructed the Wellington office of Kensington Swan as its solicitors in this matter. The plaintiff notes that this firm has for some time had offices both in Auckland and Wellington. [17] Accordingly, the plaintiff's position is that it is inappropriate where counsel for one party may have relocated (as was the case with Mr Land, counsel for the defendant here relocating from the Wellington offices of Kensington Swan to the Auckland offices of that firm) to expect the plaintiff to meet a disbursement claim for travel costs based upon that relocation. [18] Counsel for the plaintiff contends that accordingly, there is no reasonable basis for the plaintiff to meet the additional travel, taxi and accommodation costs of the defendant caused solely by the internal reorganisation of counsel for the defendant within his own firm. [19] Counsel for the defendant responded by pointing to the lengthy and complex nature of this litigation commenced in 1996 and which related to events between1990 and 1994. Mr Land's intimate personal knowledge of these cases, according to the defendant, meant that his continued involvement in the proceeding notwithstanding his transfer to Auckland was crucial. [20] Under these circumstances, the defendant argues that disbursements for travel and accommodation of Auckland counsel involved in the successful application by the defendant here is appropriate. [21] With respect, I disagree. I accept the contentions from counsel for the plaintiff that given particularly that Kensington Swan maintains offices both in Wellington and Auckland, and that it seems to be the choice of that firm that Mr Land should have been transferred to Auckland, but continue to act in this matter, that a disbursement for travel and accommodation costs is not appropriate here. [22] The total amount for disbursements payable by the plaintiff is therefore limited to the filing fee of $600.00 and the sealing fee of $40.00. [23] Orders are now made therefore in this matter that the plaintiff is to pay the defendant's costs calculated on a 2B basis totalling $6,670.00, and disbursements totalling $640.00. __________________________Associate Judge D.I. GendallSolicitors:Stace Hammond, Hamilton for Plaintiff Kensington Swan, Auckland for Defendant