SPARKS v ST HELIERS CAPITAL LTD (Costs) [2020] NZHC 1343

SPARKS v ST HELIERS CAPITAL LTD (Costs) [2020] NZHC 1343 [16 June 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2019-404-002232[2020] NZHC 1343UNDER the Property (Relationships) Act 1976 andthe Land Transfer Act 2017BETWEEN SARAH PATRICIA SPARKSPlaintiffAND ST HELIERS CAPITAL LIMITEDDefendantHearing: Determined on the papersCounsel: S Sparks, Plaintiff in personP J K Spring for DefendantJudgment: 16 June 2020COSTS JUDGMENT OF ASSOCIATE JUDGE PAULSENThis judgment was delivered by me on 16 June 2020 at 11.00 ampursuant to Rule 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:[1] In a judgment of 10 February 2020, I dismissed Ms Sparks' applications forleave to lodge a second notice of claim against a property at 109 Kapiti Road,Paraparaumu and that her notice of claim lodged against a contiguous property at77 Kapiti Road not lapse.1[2] I made a timetable for the filing of memoranda in relation to costs which wasnot complied with due to the COVID-19 pandemic restrictions. Neither party seeksto make any issue of that. St Heliers Capital Ltd (St Heliers) applies for costs whichis opposed by Ms Sparks.Submissions[3] St Heliers says it was wholly successful on both grounds it had put forward inopposition to Ms Sparks' application and there is no reason to depart from the generalprinciple that costs follow the event.2[4] I was referred to McElroy v Auckland International Airport Ltd,3 where KeaneJ noted:The paramount principle is that costs lie within the discretion of the Court.The usual principle is, however, that 'the party who fails with respect to aproceeding should pay costs to the party who succeeds'. That principlewill apply unless 'although the party claiming costs has succeeded overall,that party has failed in relation to a cause of action or issue which significantlyincreased the costs of the party opposing costs'. Whether that is so is to beassessed in broad terms.[5] St Heliers has submitted a schedule of costs calculated on a 2B basis totalling$12,179.50 (with disbursements). This includes an allowance for second counsel saidto be reasonable due to the complexity of the matter.[6] Ms Sparks submits that the purpose of her applications was to preserve herinterest in properties pending the hearing of her long-running matrimonial dispute withher former husband (Mr Olliver). She argues that costs should not be determined onlyby reference to the result of this proceeding, but that consideration should also be given1 Sparks v Olliver Trustee Company Ltd (in liq) [2020] NZHC 486.2 High Court Rules 2016, r 14.2(1)(a).3 McElroy v Auckland International Airport Ltd HC Auckland CIV-2006-404-5980, 4 May 2011at [7].to other numerous proceedings between her and Mr Olliver (or entities with which heis associated). She notes that here she was self-represented and subject to abuse fromMr Olliver which she found incomprehensible, terribly distracting and brutal. It willnot serve her whānau, including the children of Mr Olliver, if she is bankrupted overcosts. She is hopeful there can be a humane, dignified and principled determinationof the matter.Analysis[7] The court has an overriding discretion in relation to costs but the discretionmust be exercised in a principled manner and consistently with the costs regime in theHigh Court Rules 2016.[8] In Taylor v Roper4 Edwards J noted the following principles. The primarypurpose of a costs award is to compensate a successful party for the costs they haveexpended in having their legal rights recognised and enforced by the court. Costs arenot awarded as a punishment against the losing party, nor as a reward for the winner.The principle that costs should be paid by the unsuccessful party, is fundamental tothe High Court Rules costs regime and will apply unless there are exceptionalcircumstances.5 An award of costs is generally linked to the conduct of the proceedingand its result but is not usually concerned with what happened before the proceeding.The High Court Rules set out a method of calculating costs by taking a prescribed timeallocation for steps taken in a proceeding and multiplying those time allocations by aprescribed daily rate. The allocations and the daily rates are aimed at delivering asuccessful party two-thirds of the costs deemed to be reasonable in the litigation.[9] The relevant principles in this case are r 14.2(1)(a) and (g). They provide:14.2 Principles applying to determination of costs(1) The following general principles apply to the determination of costs:(a) the party who fails with respect to a proceeding or an interlocutoryapplication should pay costs to the party who succeeds:4 Taylor v Roper [2019] NZHC 16, (2019) 24 PRNZ 373 at [6] – [8].5 Manakau Golf Club Inc v Shoye Venture Ltd [2012] NZSC 109, [2013] 1 NZLR 305 at [7].(g) so far as possible the determination of costs should be predictable andexpeditious.[10] The High Court Rules also govern the circumstances in which costs may beeither increased or reduced in scale. The court may refuse to make an order for costsor reduce costs otherwise payable in circumstances set out in r 14.7. One suchcircumstance, and the only one even arguably applicable in this case, is r 14.7(g). Itprovides:(g) some other reason exists which justifies the court refusing costsdespite the principle that the determination of costs should bepredictable and expeditious.Analysis[11] St Heliers was the successful party. It is therefore entitled to an award of costsunless Ms Sparks can show there are circumstances justifying the court to depart fromthe usual rule.[12] Ms Sparks asks that consideration be given to the history of litigation betweenher and Mr Olliver. I do not agree. The conduct of the parties in prior proceedingsand the costs implications flowing from that can only be determined in thoseproceedings.[13] I accept Ms Sparks brought her proceedings in good faith. However, her beliefthat she had an interest in the properties was incorrect and in bringing her proceedingshe put St Heliers to considerable expense. Her obligation to pay costs is not affectedbecause she was self-represented.[14] Ms Sparks raises Mr. Olliver's conduct during the hearing. While Ms Sparkswas presenting submissions, she was interrupted by Mr Olliver. He shouted at heracross the court and argued with his lawyer. He then left the court. Mr Olliver'sbehavior was inappropriate, undignified and upsetting to Ms Sparks but it did not haveany effect on the costs of the proceeding. While the court may reduce an award ofcosts it must be cautious about a broad interpretation of the exception in r 14.7(g) lestthe exception swallows the rule.6 A party's discourteous behavior at the hearing thatultimately has no bearing on the costs of the proceeding to either party should not bea basis to reduce costs under r 14.7(g).[15] I am satisfied St Heliers is entitled to costs. It has sought costs on a 2B basis,which is appropriate. Its calculation of the costs sought appears to be correct except,I do not allow for second counsel. I do not consider this matter was complex justifyingsecond counsel.Result[16] St Heliers is awarded costs and disbursements of the proceeding againstMs Sparks in the amount of $11,582.00._______________________O G PaulsenAssociate JudgeSolicitors:Keegan Alexander, AucklandS Sparks, (Plaintiff – in person)cc: F B Barton, Anderson Lloyd, Dunedin (for Bank of New Zealand)6 Taylor v Roper. Above n 4, at [21] citing Roberts v A Professional Conduct Committee of theNursing Council of New Zealand [2014] NZCA 141, (2014) 21 PRNZ 753 at [24] – [25].