Tolhoff v Kitchin [2014] NZHC 205 (19 February 2014)

Last Updated: 26 February 2014

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CIV 2011-441-000703 [2014] NZHC 205

BETWEEN SANDRA JEAN TOLHOPF Plaintiff

AND MICHAEL PHILIP KITCHIN Defendant

Hearing: On the papers. Counsel: J L Bates for Plaintiff

M E G Macfarlane for Defendant

Judgment: 19 February 2014

JUDGMENT OF ANDREWS J [Costs]

Solicitors:

Gresson Grayson, Hastings

Sainsbury Logan & Williams, Napier

TOLHOPF v KITCHIN (Costs) [2014] NZHC 205 [19 February 2014]

[1] On 26 November 2013, I gave judgment in favour of the plaintiff in this proceeding and ordered the defendant to pay her $184,231 together with interest on that sum at 5.75 per cent per annum as from 1 December 2013.

[2] I directed that costs should follow the event. However, the parties have not been able to agree on the amount payable. In essence, the dispute centres on whether the High Court or District Court scale of costs applies.

[3] For the plaintiff, Mr Bates submitted that costs should be awarded on the High Court 2B scale. He referred to his calculation that costs of $34,029 are payable, together with disbursements of $7,771.60.

[4] On behalf of the defendant, Mr Macfarlane submitted that the award to the plaintiff is within the jurisdiction of the District Court and that pursuant to r 14.13 of the High Court Rules, costs should be calculated on the District Court scale, rather than the High Court scale, unless this Court directs otherwise. He submitted that there are no grounds on which this Court could direct that High Court costs are payable. Mr Macfarlane noted that it is recorded in a Minute of Associate Judge Gendall dated 25 March 2013 that the question of costs was reserved on the grounds that the proceeding could be heard in the District Court.

[5] Mr Macfarlane also challenged two of the items for which the plaintiff seeks costs.

[6] In reply, Mr Bates submitted that in this case, interest was a special damages component. It was not set by reference to the Judicature Act 1908 rate, rather it was set by reference to the report of Mr Edwards (a forensic accountant) and was based on actual losses being carried by the plaintiff as a consequence of having to carry such interest charges. As such, therefore, the award to the plaintiff must take into account both the principal sum and interest. As at the date of the judgment, interest of $21,068.52 was payable, making the total award $205,299.52. Accordingly, the claim was within the High Court, rather than the District Court, jurisdiction.

[7] I accept Mr Bates’ submissions. In this case, interest was an integral part of the plaintiff’s claim. Her total claim (including that interest) is within the High Court jurisdiction (and outside the District Court jurisdiction) and costs according to the High Court scale are payable.

[8] Mr Macfarlane then challenged the plaintiff ’s claim to the filing fee on her amended statement of claim ($108.80). He submitted that, pursuant to r 7.77(8) she was required to bear “all the costs of and occasioned by the original pleading and any application for amendment, unless the Court otherwise orders”. He submitted that, therefore, the plaintiff should be disallowed the filing fee on the amended statement of claim, and further, that credit should be given to the defendant for costs in relation to the amended pleading, which he submitted should be two days at

$1,990 ($3,980).

[9] While I accept that the plaintiff is not entitled to the filing fee on the amended statement of claim, I accept Mr Bates’ submission that the amended statement of claim did no more than set out the quantum of the claim, that no additional research as to fact or law was required, and that, therefore, the defendant is not entitled to any “credit” in respect of the amended pleading.

[10] Accordingly, the plaintiff ’s claim for costs is allowed in the sum set out in Mr

Bates’ schedule, except that the disbursements are to be amended by deducting

_$108.80.

Andrews J