SETTLERS CRESCENT PARTNERSHIP v IAG NEW ZEALAND LTD [2019] NZHC 2341

SETTLERS CRESCENT PARTNERSHIP v IAG NEW ZEALAND LTD [2019] NZHC 2341 [17 September2019]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECIV-2016-409-000780[2019] NZHC 2341BETWEEN SETTLERS CRESCENT PARTNERSHIPPlaintiffAND IAG NEW ZEALAND LIMITEDDefendantHearing: Determined on the papersCounsel: S P Rennie and WAL Todd for PlaintiffBRD Cuff and C Halliday for DefendantJudgment: 17 September 2019JUDGMENT OF GENDALL JAs to CostsThis judgment was delivered by me on 17 September 2019 at 10:30 a.m. pursuant toRule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate: 17 September 2019[1] Following a four day hearing in this Court in September 2018, on25 October 2018 I issued a judgment in favour of the defendant, IAG New ZealandLimited, on the claim against it by the plaintiff, Settlers Crescent Partnership.[2] In doing so, at para [52] of that judgment I reserved costs. I had noted therethe usual principle that costs should follow the event. Then I went on at para [52] torequest that counsel discuss this issue of costs between themselves and I specified that:If they are unable to agree, they may file (sequentially) memoranda on costs(a maximum of five pages each). These are to be referred to me and, in theabsence of either party indicating that they wish to be heard on the issue, I willdecide the question of costs based on the memoranda filed and the materialthen before the Court.[3] Almost one year has elapsed since my judgment of 25 October 2018. In thattime:(a) On 22 November 2018 the plaintiff, Settlers Crescent Partnership, filedan appeal against my 25 October 2018 decision in the Court of Appeal.(b) On 20 March 2019 the Court of Appeal issued a Notice of Result withrespect to that appeal which stated:Pursuant to r 43 of the Court of Appeal (Civil) Rules 2005, [this]appeal filed on 22 November 2018, has expired and is now deemedabandoned as at 20th day of March 2019.(c) Nearly six months later, on 6 September 2019, counsel for thedefendant, IAG New Zealand Limited, has filed in this Court amemorandum seeking costs and disbursements totalling $297,621.72against the plaintiff, Settlers Crescent Partnership, on the High Courtproceeding and trial before me.(d) On 13 September 2019 counsel for the plaintiff, Settlers CrescentPartnership, filed in this Court a memorandum in response relating tothe defendant's claim for costs and disbursements.[4] Essentially, as the successful party in this Court, the defendant seeks an orderfor category 2B scale costs plus an uplift. Taking into account an allowance for secondcounsel appearance at the hearing, this amount is said to total $51,067. Together witha 50 per cent uplift of scale costs for hearing matters which totals $10,035, the totalamount, therefore, sought by way of category 2B costs with the requested uplift comesto $61,102.[5] In addition to this costs amount, substantial disbursements in accordance withinvoices which have been attached to counsel's memorandum are sought by thedefendant. These total $236,519.72.[6] In all, therefore, the total amount sought by the defendant for costs anddisbursements in this matter, as I have noted above at [3](c) is therefore, $297,621.72.[7] In response, counsel for the plaintiff in his memorandum essentially sets outtwo competing positions:(a) His primary position here is that the entitlement of the defendant shouldbe capped by what the Partnership says is the defendant's abandonmentof a (two day) separate question hearing which was originally to takeplace in this matter but was superseded by the full trial. This primaryposition, according to counsel for the plaintiff, would result in an awardof category 2B scale costs, limited to that two day scheduled hearing of$29,090 (or reduced to $26,700 if the plaintiff is awarded a costsentitlement for providing the costs memorandum itself). In addition tothis costs figure, counsel for the plaintiff suggests limiteddisbursements comprising factual witness' expenses of only $941.68and other disbursements of only $220 should be awarded under thisprimary position.(b) Counsel then indicates that if the Court does not accept the plaintiff'sprimary position then the Partnership's secondary position is that thedefendant is entitled at most only to a sum of $157,108.06 calculatedas follows:(i) Category 2B scale costs for the four dayhearing (excluding an allowance for secondcounsel and with no uplift)$45,960.30(ii) Factual witness disbursements $6,437.33(iii) Expert witness disbursements $104,490.43(iv) Other disbursements $220.00$157,108.06[8] At the outset I note, as I have outlined at para [2] above, that my directions atpara [52] in the 25 October 2018 judgment indicate that the memoranda on costs to beprovided by counsel were to be for a maximum of five pages each.[9] The memorandum from counsel for the defendant occupied a little over sixpages. It was accompanied by two and a half pages of schedules and copies of asignificant number of attached tax invoices.[10] In response, counsel for the plaintiff provided his memorandum on coststotalling some 11 pages with a further one page schedule and a number of additionalattachments.[11] Although I have read and considered all of the material provided in thesememoranda, at this point I intend to provide a reasonably brief results judgment only.[12] In doing so, I make it clear that:(a) I reject the plaintiff's primary position on costs advanced to me asoutlined at para [7](a) above. This matter proceeded to a four dayhearing and scale costs for that hearing are appropriately awarded tothe defendant as the successful party.(b) Those scale costs are not to attract any uplift in all the circumstanceshere, but there is to be an allowance for second counsel.(c) As to an amount for the defendant's disbursements to be awarded inthis case, I am satisfied that factual witness disbursements of $6,437,33,expert witness disbursements of $104,490.43 and the otherdisbursements of $220 as suggested by counsel for the plaintiff areappropriate here.(d) That said, category 2B scale costs for this matter, including the four dayhearing and an allowance for second counsel (but without any uplift)totalling $51,067 are awarded to the defendant.(e) In addition, disbursements totalling $111,147.76 (calculated as outlinedat para [12](c) above are also to be awarded to the defendant.[13] An order is now made that the plaintiff is to pay to the defendant costscalculated on a category 2B schedule basis totalling $51,067 together withdisbursements totalling $111,147.76, making a total for High Court costs anddisbursements on this matter of $162,214.76.[14] I have noted above that this is largely a results judgment. If further reasonsmay be required, then counsel are to discuss this together and an appropriate requestmemorandum is to be filed....................................................Gendall JSolicitors:Rhodes & Co, ChristchurchDLA Piper, Auckland