RENNIE COX LAWYERS v EA [2022] NZCA 433

RENNIE COX LAWYERS v EA [2022] NZCA 433 [13 September 2022]NOTE: LOWER COURT ORDERS PROHIBITING PUBLICATION OF THENAME AND IDENTIFYING PARTICULARS OF THE RESPONDENT ANDTHE BARRISTER ENGAGED BY RENNIE COX LAWYERS REMAIN INFORCE, SEE [2019] NZHC 3191.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA302/2020[2022] NZCA 433BETWEEN RENNIE COX LAWYERSAppellantAND EARespondentCounsel: S P Bryers for AppellantR J Hollyman QC and P B Friedlander for RespondentJudgment:(On the papers)13 September 2022 at 9.30 amJUDGMENT OF GILBERT JA The application for review of the Deputy Registrar's decision is dismissed.B There is no order for costs.____________________________________________________________________REASONS[1] In a judgment delivered on 3 December 2021, this Court allowed the appealbrought by Rennie Cox Lawyers (Rennie Cox).1 We took the unusual step of reservingthe issue of costs for the following reasons:[33] We would normally have ordered EA to pay costs to Rennie Cox fora standard appeal on a band A basis and usual disbursements. We would also1 Rennie Cox Lawyers v EA [2021] NZCA 648.have directed that costs in the High Court be fixed by that Court in accordancewith this judgment. However, Mr Bryers asked us to take the unusual step ofreserving the question of costs. We understand this is because Calderbankoffers may be relevant to the assessment of costs. Consequently, we willreserve costs. If the parties are unable to reach agreement, submissions onbehalf of Rennie Cox should be filed within 20 working days of the date ofthis judgment. EA's submissions in response should be filed within10 working days of receipt. Costs will then be determined on the papers.[2] The parties were unable to agree. Each filed submissions in accordance withthe directions in the timetable. Rennie Cox sought increased costs on the basis thatEA failed, without reasonable justification, to accept a settlement offer that would havedisposed of the appeal. EA responded that she should receive costs even though shewas the unsuccessful party on the appeal. Alternatively, she argued that Rennie Cox'scosts should lie where they fall. EA also disputed the costs claimed and attached aschedule setting out her calculation of Rennie Cox's costs and usual disbursements onthe appeal. This totalled $14,495.[3] In a judgment delivered on 14 February 2022 (the Costs judgment), the Courtdeclined Rennie Cox's application for increased costs and ordered EA to pay costs toRennie Cox for a standard appeal on a band A basis and usual disbursements to befixed by the Registrar.2[4] After receiving submissions from both parties, the Deputy Registrar issueda fully reasoned decision fixing the costs payable by EA to Rennie Cox at $13,145plus disbursements of $3,811.02.[5] EA now applies for a review of that decision. The application has been referredto me for determination on the papers.[6] EA contends in her application for review, as she did in her submissions tothe Deputy Registrar, that Rennie Cox is not entitled to any costs and she seeks anorder "substituting an award of nil". This is because, she says, Rennie Cox "neitherappeared nor instructed counsel" for the appeal and did not incur any costs. She argues2 Rennie Cox Lawyers v EA [2022] NZCA 15 [Costs judgment].that the costs were met by the barrister who is the effective claimant on whose behalfRennie Cox is pursuing the proceedings.3[7] I note that this point was not raised in the submissions filed for the purposes ofthe Costs judgment. Having considered those submissions, the Court ordered thatRennie Cox was entitled to costs for a standard appeal on a band A basis and usualdisbursements to be fixed by the Registrar.4 It would have been inconsistent with thatorder if the Deputy Registrar had fixed the costs and disbursements as "nil" onthe basis that Rennie Cox did not appear at the appeal and is not entitled to any costs.[8] I accept, of course, the basic principle that no party can claim costs in excessof costs actually incurred.5 The suggestion that Rennie Cox did not appear at thehearing is plainly wrong. It was represented by Mr Bryers at the hearing and wasvulnerable to any adverse costs award in the event its appeal did not succeed.Rennie Cox originally engaged the barrister on EA's instructions. After EA disputedthe barrister's fees, Rennie Cox agreed (with the barrister's agreement andnotwithstanding her non-payment) to release the files to EA on the basis it would sueher for recovery. Although Rennie Cox was not required to fund the litigation and wasto be indemnified by the barrister for any adverse costs awards, it is implicit inthis arrangement that Rennie Cox was required to seek costs against EA and incurredan obligation to the barrister to pay him any costs recovered. I am not persuaded thatthe Deputy Registrar made any error in her determination of this issue. She was rightto reject the nil award contention which was inconsistent with the Costs judgment.[9] EA next complains that the Deputy Registrar should not have awarded costsfor preparing the case on appeal. In doing so, EA contends the Deputy Registrar"effectively granted a windfall of $2,390.00". The band A costs for preparing a caseon appeal are $2,390. I note that this sum was included in the schedule prepared byEA for the purposes of the Costs judgment setting out her calculation of the sumclaimable by Rennie Cox if costs were awarded on a band A basis. The apparent3 The underlying proceeding in the District Court, in which Rennie Cox is the plaintiff and EA isthe defendant, is a claim for recovery of the barrister's fees. The barrister was originally retainedby Rennie Cox as the instructing solicitor on EA's instructions.4 Costs judgment, above n 2.5 Court of Appeal (Civil) Rules 2005, r 53A(1)(f).inconsistency is explained by EA's contention that the work was outsourced to a juniorbarrister and her fee was recovered in the costs award as a disbursement.[10] The Deputy Registrar accepted that the case on appeal was prepared byRennie Cox in the usual way, and "involved a significant amount of correspondencewith respondent counsel regarding the contents". This work involved compilingthe documents to be included in the case and preparing a draft index.The disbursement for work undertaken by the junior barrister — allowed in the sumof $325 plus stationery and photocopying costs of $83.42 — was separate and relatedto the preparation of electronic and hard copies of the case. There was no overlap andno "windfall". I see no error in the Deputy Registrar's decision on this issue.[11] Lastly, EA complains about the disbursements for Mr Bryers' travel andaccommodation costs, allowed by the Deputy Registrar in the total sum of $1,011.29.Having reviewed the Deputy Registrar's careful analysis of the competing contentions,I am not persuaded that her determination should be interfered with.[12] Mr Bryers seeks costs on this application. However, there is no expressprovision for costs on an application for review. EA exercised her right of review ofthe Deputy Registrar's decision pursuant to r 5A(3) of the Court of Appeal (Civil)Rules 2005. Such applications are informal (r 5A(3)(a)) and are excluded from thedefinition of an interlocutory application in r 3(1). These informal applicationstherefore fall outside the scope of the general costs provision in r 53. For thesereasons, it is doubtful whether there is jurisdiction to make an order for costs on anapplication such as this. In any event, although detailed submissions were filed, thesewere not necessary for a review of the Deputy Registrar's determination of costs anddisbursements for a standard appeal on a band A basis. I am not prepared to make anyfurther order for costs.[13] The application for review of the Deputy Registrar's decision is dismissed.[14] There is no order for costsSolicitors:Rennie Cox Lawyers, Auckland for AppellantFriedlander & Co Ltd, Auckland for Respondent