Bethell v Bethell [2014] NZHC 1188 (30 May 2014)

Last Updated: 13 June 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-001797 [2014] NZHC 1188

BETWEEN	CHRISTINE ANNE BETHELL Plaintiff
AND	VICTORIA ELIZABETH BETHELL Defendant / First Counterclaim Plaintiff MARIA GAEL BETHELL Second Counterclaim Plaintiff

Judgment: 30 May 2014

_{JUDGMENT OF COURTNEY J}

This judgment was delivered by Justice Courtney on 30 May 2014 at 1.00 pm

pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

_{Date.............................}

BETHELL v BETHELL [2014] NZHC 1188 [30 May 2014]

^Introduction

[1] In my decision 20 December 2013 I found largely in the plaintiff’s favour and made the order for specific performance sought. The plaintiff now seeks costs on a 2B basis.

[2] The defendant and counterclaim plaintiff accept that, in general, the plaintiff is entitled to costs on a 2B basis. However, they do not accept that she is entitled to costs for steps relating to the claim for compensation for income earned from the land during the relevant period. There are also some other minor aspects on which the parties do not agree.

Costs relating to the issue of income derived from the land

[3] It was accepted at trial that the defendant had received income from the land in respect of which the plaintiff obtained an order for specific performance. In addition to the order for specific performance, the plaintiff sought compensation for the period over which she was entitled to the land. However, that cause of action failed. The defendant and counterclaim plaintiff resist costs for the plaintiff’s application for further and better discovery and interrogatories on the ground that

they relate to this issue.¹

[4] The material relevant to the defendant’s income from the land was relevant and liable to be discovered and was also properly the subject of interrogatories. However, it involved collating and analysing a very substantial amount of material. It was clear from Vicky Bethell’s evidence that the exercise took up significant time.

[5] The fact that discovery and interrogatories on this aspect took up a great deal of time, and the fact that there was pressure of time does not necessarily detract from the plaintiff’s right to costs. However, this was an issue that, ultimately, was of peripheral significance to the resolution of the case. It took up a disproportionate

_{amount of trial time and the plaintiff failed on it. For those reasons this aspect of the}

¹ Items J, K and V in the table to Mr Thompson’s memorandum 23 January 2014.

proceeding falls within r 14.7(d) of the High Court Rules as justifying either a refusal to award costs or a reduction in costs.

[6] I consider it appropriate to decline the plaintiff’s costs in relation to discovery and interrogatories. Further, I consider that there should be a reduction of 10 per cent in the overall costs awarded to reflect the extent to which the trial was devoted to this issue.

Other costs items in dispute

[7] The defendant and counterclaim plaintiff dispute items I and N in the table contained in Mr Thompson’s memorandum on the basis that they relate to consent memoranda which were actually drafted by defence counsel. The plaintiff says that there was input into the memoranda by the plaintiff’s counsel and she should therefore be entitled to costs. Whilst that might be right, these items are specifically directed to the preparation of memoranda and I therefore disallow them.

Disbursements

[8] Most of the disbursements claimed are not in dispute. However, the defendant and counterclaim plaintiff dispute items 10, 11 and 12 of Mr Thompson’s table. These are disbursements relating to the plaintiff’s application for an extension of the resource consent relating to the use of the land in question. It is resisted on the basis that they are not disbursements reasonably necessary for the conduct of the proceedings as required by r 14.12(2).

[9] Mr Thompson submits that they are reasonably connected to the litigation because, as I found, the obligation lay with Ross Bethell to implement the resource consent. It was his failure to do so that ultimately meant that the plaintiff had to incur the costs of obtaining an extension to the consent. I accept that this is the correct position and that the plaintiff is entitled to the disbursements as claimed.

^{Leave reserved}

[10] The parties should be able to re-calculate the costs payable based on these orders. Leave is reserved to seek further directions if there are aspects of the

_{calculation upon which agreement cannot be reached.}

P Courtney J