Katavich v Dean [2014] NZHC 437 (11 March 2014)

Last Updated: 25 March 2014

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CIV-2012-442-000476 [2014] NZHC 437

BETWEEN TONY WAYNE KATAVICH First Plaintiff

AND HALDEMAN LLC Second Plaintiff

AND JOSHUA DESMOND BECKETT DEAN First Defendant

AND MIA NELSON Second Defendant

AND JOBIT LIMITED Third Defendant

Hearing: 10 March 2014 (Determined on the Papers) Counsel: R Moodie for Plaintiffs

^{L Acland for Defendants}

Judgment: 11 March 2014

_{COSTS JUDGMENT OF ASSOCIATE JUDGE MATTHEWS}

[1] The first and second plaintiffs have discontinued this proceeding against all three defendants. Under r 15.23 the plaintiffs must now pay costs to the defendants of and incidental to this proceeding up to and including the discontinuance, unless the Court otherwise orders. All three defendants have sought costs, separately. All were represented by the same counsel throughout the proceeding.

[2] I have received and considered memoranda from the defendants and from the plaintiffs, and issue this judgment on the papers.

T W KATAVICH v HALDEMAN LLC & ORS [2014] NZHC 437 [11 March 2014]

[3] The first and the second defendant were each granted legal aid on

28 February 2013, and each grant ended on 18 December 2013. All their costs up to that date were met, including costs incurred before each grant.

[4] Each of the first and second defendants seeks an award of costs for attendances specified in separate schedules prepared and submitted by their solicitor. Counsel for the plaintiffs says that they accept and will pay the total costs claimed in those tables, $4,532.81 for the first defendant and $12,083.25 for the second defendant.

[5] The third defendant is a company of which the first and second defendants are the directors. It too seeks costs as specified in a schedule submitted to the Court. Counsel for the plaintiffs objects to paying costs to the third defendant in addition to those to be paid in respect of the first and second defendants. He says that there was “never any separate pleading, interlocutory hearing, or documentation filed” in respect of the company itself, the interlocutory processes in relation to discovery and further particulars were proceedings against and were responded to by the first and second defendants, that the time involved in relation to the third defendant’s statement of defence was very minimal and in all the circumstances the claims made on behalf of the third defendant have the appearance of “double dipping”. Counsel also says that the plaintiffs should not be penalised for acting responsibly in unilaterally bringing the proceedings against the company to an end once a certain factual position was established.

[6] In considering the submissions made for the plaintiffs and the defendants, and in particular the concerns expressed by counsel for the plaintiffs that the claims for costs amount to claims for the same attendances, I have reviewed the file and in particular the pleadings and other documents filed.

[7] In the first statement of claim, the first cause of action was against all three defendants. The remaining causes of action were against the first defendant or the second defendant. The third defendant filed a statement of defence.

[8] Neither the first amended statement of claim, nor the second amended statement of claim, contains any separate cause of action against the third defendant either, and the third defendant did not plead to either of these documents.

[9] The attendances for which an award of costs is sought by the third defendant comprise:

(a) Commencement of defence

(b) Preparation for first case management conference

(c) Filing memorandum for first or subsequent case management conference or mentions hearing (two, on specified dates)

(d) Appearance at mentions hearing or callover

(e) Appearance at first or subsequent case management conference

(f) List of documents on discovery

(g) Inspection of documents

[10] None of the elements of the claims for costs against either the first or the second defendant is repeated in relation to the third defendant.

[11] By reference to this list, I find:

(a) The third defendant faced a pleading of one cause of action jointly with the first and second defendants, but as a separately cited party was entitled and obliged to file a separate statement of defence. That statement of defence is different from the statement of defence filed by the first defendant, and that filed by the second defendant, and a separate award of costs is appropriate. The third defendant is a separate legal entity from each of the first and second defendants, and I do not consider there is a material element of double charging in relation to the filing of its statement of defence.

(b) Neither the first defendant nor the second defendant has claimed a fee for preparation for the first case management conference, as claimed by the third defendant.

(c) Neither the first defendant nor the second defendant has claimed in relation to the conferences on 12/2/13 and 23/4/13.

(d) Neither the first defendant nor the second defendant has claimed for an appearance at the mentions hearing or callover on 6/11/13.

(e) Neither the first defendant nor the second defendant has claimed for an appearance at the case management conference on 12/2/13.

(f) The third defendant was a separate defendant and was required to give discovery of documents, and it did so in a separate affidavit, sworn by the first defendant on its behalf.

(g) That carried with it separate attendant obligations to provide inspection of those documents, and as a separate party it was also entitled to undertake inspection of documents, discovered by the plaintiffs.

[12] I am satisfied that no doubling up has occurred. Nor do I see the awarding of costs in accordance with the Rules as penalising the plaintiffs. It follows that the third defendant is entitled to costs as claimed.

Outcome

[13] I award costs:

(a) To the first defendant in the sum of $4,532.81.

(b) To the second defendant in the sum of $12,083.25. (c) To the third defendant in the sum of $15,323.00.

[14] Counsel for the defendants has not referred to disbursements. I award to each

_{of the defendants disbursements fixed, if necessary, by the Registrar.}

J G Matthews

Associate Judge

Solicitors:

Moodie & Co, Feilding.

Bamford Law, Nelson.