Harrison v Keogh [2015] NZHC 3320 (18 December 2015)

Last Updated: 19 February 2016

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-001571 [2015] NZHC 3320

BETWEEN	AIDAN JOSEPH HARRISON First Appellant
AND	WELLINGTON CITY HELICOPTERS LIMITED Second Appellant
AND	JOHN PATRICK JOSEPH KEOGH Respondent

Hearing:	On the papers
Counsel:	M B Beech & D M Fraundorfer for the Appellants Respondent in person
Judgment:	18 December 2015

_{JUDGMENT OF NATION J AS TO COSTS}

[1] The appellants’ appeal against the judgment of the District Court was dismissed with my judgment of 11 November 2015.¹ In my judgment I held that the respondent was entitled to costs against the second appellant in respect of disbursements he had incurred in relation to the appeal, being self represented.

[2] The respondent has filed a memorandum seeking an order for costs as follows:

Professional fees paid to a law firm in connection with the appeal	$4,694.97
Costs for travel by car between respondent’s home address in Wellington to High Court in Auckland at IRD allowed mileage rates for case management conference set down for 4 August 2015	$970.20

¹ _{Harrison v Keogh [2015] NZHC 2791.}

HARRISON & WELLINGTON CITY HELICOPTERS v KEOGH [2015] NZHC 3320 [18 December 2015]

Travel to and from Wellington for the appeal hearing	$970.20
Accommodation for two nights, the night before and the night at the end of the appeal hearing	$336.60

[3] The appellants say there should be no recovery of legal fees as they are not a “disbursement” pursuant to r 14.2 of the High Court Rules. They submit that, if there is any recovery, it should be commensurate with costs that could be claimed on a scale basis.

[4] In connection with the case management conference, the appellants submit that travel was not reasonably necessary as the respondent could have participated by telephone. The respondent says the case management conference was only changed to a telephone conference after last minute requests by the appellants’ solicitors to the Auckland High Court. He also points out that the conference was set down as a hearing fixture for their stay of execution application which had been filed with the High Court incorrectly. It should have been filed with the District Court.

[5] The appellants submit it was not reasonable for the respondent to have accommodation in Auckland for two nights in connection with the hearing of the appeal. The respondent says it was quite reasonable for him to stay there rather than embark on a nine hour drive back to Wellington after the stress of personally representing himself at the hearing.

[6] The appellants also submit that the costs for travel were too high in that the respondent could have travelled between Wellington and Auckland by air more cheaply.

[7] The award of costs is ultimately a matter for my discretion but with due regard to the rules. I do have regard, in the circumstances of this case, that the respondent was representing himself on the appeal. That justified him seeking some general legal advice in relation to the appeal, the submissions that he received in advance from the appellants and his response. Had he engaged counsel, he would have been entitled to costs for legal representation on a 2B basis.

[8] It is apparent, from the information on the solicitors invoice, that the costs Mr Keogh incurred were for attendances connected to the appeal. The solicitors did not charge for a meeting of one hour for the reviewing of submissions, although a similar time was involved in considering whether there had to be a delay in enforcing judgment. The total fees of $4,694.97, including GST and disbursements, appear reasonable.

[9] The solicitors did not charge for a number of attendances in relation to reviewing documents, meetings and discussions with Mr Keogh and preliminary work on the submissions in the period 28 July 2015 to 17 September 2015.

[10] The authorities, as to whether a lay litigant can recover costs for fees he pays by way of professional assistance, were carefully considered by Associate Judge Osborne in a judgment of 9 October 2014.² For the reasons he explains, I accept “it may be appropriate to award a lay litigant a contribution to legal costs even where the litigant conducts the actual litigation himself or herself”.³ On a 2B basis, the costs for preparation of written submissions, if counsel had been involved, would have been three days at $2,230 equating to $6,690.

[11] The assistance provided by the solicitors must have made it easier for the respondent to appear on the appeal without legal representation. In that sense, the work done by the solicitors and the costs incurred by the respondent have contributed to the appellants not having to pay costs for legal representation at the hearing.

[12] Having regard to those matters, the respondent is entitled to recover, as a disbursement, the costs he incurred in obtaining legal advice from DLA.

[13] I consider that it was reasonable for the respondent to travel to Auckland for the first hearing when he reasonably considered the High Court would be concerned with an application for stay of the judgment. I have regard to the fact the application

_{for stay was in the High Court because of a mistake made on behalf of the}

² _{Working Capital Solutions Holdings Ltd v Pezaro [2014] NZHC 2480.}

³ At [18].

appellants. The appellants’ counsel should have taken the initiative in suggesting or arranging a telephone conference well in advance of the conference date if he considered that was appropriate for both parties.

[14] I note that the respondent was able to avoid any accommodation costs in connection with his first scheduled conference attendance. It was reasonable for him to have two nights accommodation in connection with the hearing of the appeal.

[15] Given the stresses associated with representing himself in Court, I consider it was reasonable for him to have the use of a vehicle in Auckland in connection with his Court appearances. The cost of travelling to and from Auckland for the hearings was a cost incurred in connection with the appeal. In considering whether the costs claimed for were reasonable and necessary, I do have regard to what the costs might have been if the respondent had flown between Wellington and Auckland and used a rental car. I will allow half the costs claimed for travel.

[16] I accordingly make an order that the second appellant is to pay costs for disbursements as follows:

Professional fees paid to a law firm in connection with the appeal	$4,694.97
Travel for both hearings	$970.20
Accommodation	$336.60
TOTAL	$6,001.77

Solicitors:

Holland Beckett, Tauranga

Copy to:

J P J Keogh, Wellington.