Perriam v Wilkes [2012] NZHC 3449 (17 December 2012)

Last Updated: 21 December 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2009-425-284 [2012] NZHC 3449

BETWEEN WENDY JOY PERRIAM Plaintiff

AND LAWRENCE ERNEST WILKES First Defendant

AND STEPHEN JOHN BRADSHAW Second Defendant

AND ALEXANDER MCLENNAN WILSON Third Defendant

AND LESLEY MARGARET INSTONE Fourth Defendant

AND JUDITH ELEANOR FLETT Fifth Defendant

AND QBE INSURANCE (INTERNATIONAL) LIMITED

Third Party

Judgment: 17 December 2012

_{JUDGMENT ON COSTS OF ASSOCIATE JUDGE D.I. GENDALL}

Under r 11.5 of the High Court Rules I direct the Registrar to deliver this judgment at 4.00 pm on 17 December 2012.

Solicitors: Lewis Callanan, Solicitors, PO Box 35361, Browns Bay, Auckland

Burrowes & Co, Solicitors, PO Box 24515, Manners Street, Wellington

WJ PERRIAM V LE WILKES & ORS HC AK CIV-2009-425-284 [17 December 2012]

[1] On 13 June 2012 I gave a judgment in this proceeding striking out the

plaintiff’s claim against the defendants.

[2] In that judgment at para [64] I awarded costs to the defendants against the plaintiff on the striking out application on a category 2B basis together with disbursements as fixed by the Registrar.

[3] Just referred to me are Memoranda from the parties regarding issues of costs in this proceeding.

[4] Counsel for the defendants in his Memorandum filed 20 September 2012 (but which appears to be dated 31 August 2012) seeks:

(a) An order as to the quantum of category 2B costs and disbursements to be paid by the defendants on the strike-out application; and

(b) An order against the defendants as to costs generally arising from the proceeding itself, these costs to be calculated on an indemnity basis, and further an order that the plaintiff’s solicitor personally be required to pay these costs.

[5] So far as the matter noted at para [4](b) above (the second application) is concerned, this is opposed by the plaintiff and her solicitor, Ms Callanan. (On this, counsel for Ms Callanan has also filed a memorandum in this proceeding dated 13

September 2012).

[6] So far as that second application seeking an order for indemnity costs on the overall proceeding itself is concerned, in my view it is premature under all the circumstances prevailing here to consider that application at this point until the final outcome of my 13 June 2012 order striking out the plaintiff’s claim is known. As to this, I believe an application to review my 13 June 2012 decision has been filed by the plaintiff in this Court, but a hearing of that application is still awaited. It is my view that until that hearing takes place it is not appropriate to consider any overall award of costs on the substantive proceeding itself.

[7] Accordingly, the defendants’ application for costs on the substantive proceeding is simply adjourned at this stage to await the outcome of the review application hearing.

[8] So far as the first application noted at para [4](a) is concerned, however, on this counsel for the defendants seek an award of category 2B costs totalling

$6,956.00 together with disbursements totalling $1,427.47.

[9] A total of 3.7 days by way of costs calculation is sought for filing the strike- out application, preparing written submissions and a bundle, and a 1 day appearance at the hearing of the application. In my view this is appropriate and the amount for category 2B costs at $6,956.00 is approved.

[10] So far as disbursements are concerned, these total $1,427.47 and include a filing fee of $600.00, return flights to Auckland for Wellington counsel for the defendants together with taxi and car park charges totalling $510.43 and $209.57 respectively, and charges for couriers of $62.47 and binding of $42.00.

[11] In my view these disbursements are also appropriate here.

[12] In conclusion, total category 2B costs and disbursements for the defendants on their successful strike-out application are awarded against the plaintiff at a total of

$8,383.40.

‘Associate Judge D.I. Gendall’