Hewitt v Window World Franchise Limited HC Whangarei CIV-2009-488-000488 [2011] NZHC 604 (23 June 2011)

Last Updated: 4 July 2011

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

_{CIV-2009-488-000488}

BETWEEN MARK HEWITT Appellant

AND WINDOW WORLD FRANCHISE LIMITED

First Respondent

AND ROGER BROWN

Second Respondent/Third Party

Hearing: On the papers

Counsel: SA Grant and EA James for Appellant

DM Grindle for First Respondent

PJ Magee for Second Respondent/Third Party

Judgment: 23 June 2011 at 4:30 PM

JUDGMENT OF RODNEY HANSEN J (As to costs)

This judgment was delivered by me on 23 June 2011 at 4.30 p.m., pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ...............................

Solicitors: Law North Partners, Private Bag 1001, 0245, Kerikeri 0230 for Appellant

Webb Ross, DX AP24506, Whangarei for First Respondent

Thomson Wilson, DX AP24512, Whangarei for Second Respondent

HEWITT V WINDOW WORLD FRANCHISE LTD HC WHA CIV-2009-488-000488 23 June 2011

Introduction

[1] In my judgment of 4 March 2011, I dismissed the appellant’s appeal against a

judgment of Judge Cadenhead in the District Court. The judgment concluded:1

If counsel are unable to agree, I will consider memoranda in relation to costs. My provisional view is that an award in excess of scale is warranted.

[2] Counsel’s attempts to agree on costs having been unsuccessful, I am now asked to determine the issue and also to decide whether $12,000 security for costs paid by the first respondent (Window World) in the District Court should now be disbursed.

Costs

[3] I formed the provisional view that an award of costs in excess of scale was justified because I considered that the preparation time for the hearing would have substantially exceeded the time allocated under band C: r 14.6(3)(a) of the High Court Rules. Both respondents initially sought costs on a solicitor and client basis, in Window World’s case on the ground that it was entitled to indemnity costs under its contract. However, after reconsidering the position in light of Judge Cadenhead’s judgment on costs, Mr Grindle accepts that there is no contractual right to solicitor and client costs. He seeks either an order for increased costs over scale costs on a category 2 band B basis or costs on a 3B basis. Mr Magee, for the second respondent/third party, maintains that solicitor and client costs should be awarded or, if an award on that basis is not available, costs on a 3B basis.

[4] Mrs Grant contends that there is no justification for an award of increased costs. She says that the appellant acted reasonably throughout the appeal process and complied with all rules and directions of the Court. She submits that his actions

_{did not protract the appeal proceedings or result in increased expense to the parties.}

1 At [58].

[5] The proceedings do not qualify as category 3. They were not of such complexity or significance as to require counsel having special skill and experience in the High Court. What added significantly to the cost of the proceeding was the sheer number of issues which the appellant sought to argue. There were 26 separate points of appeal, all of which were the subject of detailed written submissions. Although the appellant finally relied on only nine points of appeal, the respondents were obliged to prepare for the hearing on the basis of the written submissions filed.

[6] Item 15 of Schedule 3 allows time for preparation under all bands equivalent to the time occupied by the hearing, in this case 1.5 days. I consider that allowance is inadequate. In my view, the time required to prepare for the hearing would have substantially exceeded 1.5 days.

[7] Having regard to these factors, an appropriate award is costs on a category 2 band B basis, uplifted by 50 per cent in order to take account of the additional costs of preparation.

Security for costs

[8] On 19 February 2008, Window World paid $12,000 into the District Court as security for costs. Following its success in the District Court, Judge Cadenhead considered whether to order that the security be released. He said at [9] of his judgment:

I am of the view that a prompt appeal has been lodged here, that delay should not be great in hearing of the appeal. Accordingly I exercise my discretion in order that the payment of security for costs should not be made until the appeal is decided.

[9] Mr Grindle points out that Judge Cadenhead’s decision was made on

8 September 2009 in anticipation that the appeal would be promptly disposed of. That has not proved to be the case and it is just that the security be returned to Window World.

[10] Mrs Grant opposes the return of the security for costs. Mr Hewitt has applied for leave to appeal. As Window World does not trade and has no assets, Mrs Grant is

concerned that an appeal would be rendered nugatory as it concerns costs if the security is paid out.

[11] Although I am sympathetic to Window World’s position, I think it would be premature for me to decide the issue in advance of the determination of the application for leave to appeal which, together with an application for stay of execution, is to be heard on 7 July 2011. Window World’s application to recover the security should be further addressed then.