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High Court of New Zealand Decisions |
Last Updated: 30 November 2012
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV 2011-404-006525 [2012] NZHC 3154
UNDER the Trustee Act 1956
BETWEEN WENONA STEPHENS Plaintiff
AND GILBERT LESLIE MIERS, BARRY BRUCE WILLIAMS, BRYAN DEO LITHGOW
First Defendants
AND PETER KERRY KNIGHT Second Defendant
Hearing: On the papers
Counsel: P J Stevenson for Plaintiff
A S R Kashyap for Second Defendant
Judgment: 26 November 2012
SUPPLEMENTARY JUDGMENT OF ASSOCIATE JUDGE ABBOTT
This judgment was delivered by me on 26 November 2012 at 2.30pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date...............
Solicitors:
Stafford Klaasen, PO Box 29185, Auckland 1347
A S R Kashyap, PO Box 26596, Epsom, Auckland 1344
Counsel:
P J Stevenson, PO Box 3247, Shortland Street, Auckland 1140
STEPHENS V MIERS & ORS HC AK CIV 2011-404-006525 [26 November 2012]
[1] On 1 November 2012, I gave a judgment awarding indemnity costs to the plaintiff after the second defendant (a former trustee) signed a document needed to transfer a trust property to new trustees, which was what the proceeding was brought to achieve. I ruled that the indemnity costs were to apply up to date of delivery of the authority and instruction form and discontinuance of the proceeding, but were to
exclude costs related to an application for substituted service.1
[2] I also ruled that costs in respect of the dispute over costs were to lie where they fall, given that both parties had had some success.
[3] Although I determined the dispute as to whether indemnity costs were appropriate, I did not determine quantum. I reserved leave for the parties to file memoranda if they were unable to agree on quantum. That has proved to be the case. The file has been referred back to me with the memoranda of both counsel dated 22 November 2012.
[4] There may be some confusion as to what was intended by my ruling that the costs of addressing the dispute over costs were to lie where they fall. I referred to those costs as costs since discontinuance, which was not particularly helpful as there has been no formal discontinuance of the proceeding. It was accepted, however, by the time of the chambers list mention on 18 July 2012 that the second defendant had provided the requisite authority, and that that had brought the proceeding to an end save for the question of costs. Documents on the file reveal that the authority was signed on 19 June 2012, and title was transferred with effect from 21 June 2012. I propose to use the latter date as the effective date of completion of the proceeding, save for costs.
[5] The costs claimed by the plaintiff include claims for the costs incurred both with her solicitors and with her counsel. The invoice for her solicitor’s costs is incomplete, so it is difficult to assess what is included in the total claim of $3,238.23. However, as the invoice is apparently in respect of attendances up to 20 July 2012, I
infer that it includes attendances relating to the compilation of the affidavit of Mr
1 Paragraph [27] of the judgment.
Stafford sworn on 17 July 2012, which deals with costs. Similarly, the last invoice of counsel for the plaintiff (in an overall sum of $3,858.25) is said to be for attendances predominately from 6 June 2012 to 10 August 2012, and must be taken to include attendances in respect of costs.
[6] I propose to deal with this by disallowing part of the solicitor ’s invoice, and a substantial part of counsel’s last invoice. Rather than have counsel submit a further memorandum breaking down these attendances, I propose discounting the total claim of $11,508.48 by approximately $3,000, as reflecting attendances of both the solicitor and counsel on the cost issue.
[7] Counsel for the second defendant submitted in his memorandum first that the solicitor’s fee should not be allowed in any event (because the solicitor should have obtained signature of the requisite authority form at the outset), and secondly that a fee in excess of $5,000 would be excessive in any event.
[8] I have addressed the first point in the cost judgment – the second defendant ought to have provided the form immediately when requested in 2010. He has put the plaintiff to unnecessary (and completely avoidable) cost, when it was his duty to provide a signature as requested to discharge his role as returning trustee. The second point is answered by the fact that the sum that I have determined as reasonable is not significantly greater than costs would have been payable on a scale
2B basis.
[9] I find that a reasonable sum for the indemnity costs is $8,500.
Associate Judge Abbott
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URL: http://www.nzlii.org/nz/cases/NZHC/2012/3154.html