Forde v Li [2016] NZHC 1429 (28 June 2016)

High Court of New Zealand

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Forde v Li [2016] NZHC 1429 (28 June 2016)

Last Updated: 24 August 2016

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CIV-2015-412-000100 [2016] NZHC 1429

BETWEEN	CAVAN JAMES FORDE AND MARTIN CAVAN MCLEOD FORDE Appellants
AND	HUGH JIAN LI Respondent

Hearing:	28 June 2016
Appearances:	L A Anderson for Appellants D P Robinson for Respondent
Judgment:	28 June 2016

ORAL JUDGMENT OF GENDALL J (As to costs)

FORDE v LI [2016] NZHC 1429 [28 June 2016]

[1] In a decision I gave in this Court on 18 February 2016 on an appeal by the appellants against a decision of the District Court at Dunedin given on 11 August

2015, I allowed the appeal and awarded costs on that appeal and also costs on the District Court proceeding itself, calculated on a category 2B scale basis, together with disbursements to the appellants.

[2] Counsel have now filed memoranda regarding this costs and disbursements issue. There appears to be a number of disagreements between counsel upon what costs and disbursements are appropriately covered by my award at para [59](c) of that 18 February 2016 judgment.

[3] In this regard counsel for the appellants as the successful party on that appeal seeks the following:

(a) Category 2B scale costs on the High Court proceeding amounting to

$14,049;

(b) Disbursements on the High Court proceeding itself amounting to

$2,451.06;

(c) District Court costs calculated on a 2B basis relating to the District

Court proceeding amounting to $25,962.50;

(d) Expert witnesses’ fees relating to Todd Whitcombe amounting to

$3,622.50 and relating to Nigel Pitts the surveyor amounting to

$8,190.87;

(e) Disbursements claimed relating to the District Court proceeding being

$169.20 for the filing fee on the statement of claim and counter claim, photocopying of $128.46, and binding of $26.39. Additional disbursements are claimed amounting to an adjusted figure of $2,875 for the legal fees of Mr Alister Paterson relating to costs on removing the limitation as to parcels and for $13,045.74 relating to Mr Nigel Pitts, being surveying costs on removing the limitation as to parcels.

_{[4] In table form this amounts to the following:}

Category 2B scale costs on the High Court proceeding	$14,049.00
Disbursements on the High Court proceeding itself	$2,451.06
District Court costs calculated on a 2B basis relating to the District Court proceeding	$25,962.50
Expert witnesses’ fees relating to:
Todd Whitcombe	$3,622.50
Nigel Pitts	$8,190.87
Disbursements claimed relating to the District Court proceeding being:
Filing fee on the statement of claim and counter claim	$169.20
Photocopying	$128.46
Binding	$26.39
Additional disbursements are claimed for:
Legal fees of Mr Alister Paterson relating to costs on removing the limitation as to parcels	$2,875.00
Mr Nigel Pitts, surveying costs on removing the limitation as to parcels	$13,045.74
Total	$70,520.72

[5] In his memorandum in response, Mr Robinson for the respondent raised a number of issues which I now deal with.

[6] First, he queried items noted at 10 and 11 in the scale costs claim for High Court costs. This was an allowance of 0.4 of an hour at the hourly rate of $2,230 amounting to $892. At item 10 this was noted as “preparation for first conference” and at item 11 a similar amount of $892 is claimed for “filing memorandum”. Mr Robinson suggested that the item 11 claim should have been properly subsumed in the similar claim under item 10 in preparing for the first conference. I agree. I disallow the item 11 claim for $892 which is to be subtracted from the amount claimed by the appellants for High Court costs.

[7] Next, Mr Robinson contended that item 55 claimed for the High Court appeal costs amounting to one hour’s preparation time for the case on appeal was excessive. I disagree. In my view this was not an excessive claim. This amount is allowed.

[8] In turning to the District Court costs claim, Mr Robinson contended that under item 3 in this claim the appellant had twice claimed $3,100 for two hours’ work. The first relating to the “information capsule”, and the second relating to the

“information capsule on the counter claim”. In my view there is clear duplication here. The second claim of $3,100 under this item 3 for information capsule on the counter claim is disallowed.

[9] Mr Robinson then contended that the amount claimed by the appellants for appearance at the District Court hearing, being three days, and for preparation for the hearing being six days, was incorrect. Mr Robinson said that in reality the hearing only occupied two and a half days, given that at times in the District Court hearing time amounting to a maximum of one quarter day and it is this that be allowed, rather than the half day to which the appellants had rounded this up. On these aspects, understandably it is difficult for me to make a clear determination upon what may have occurred in the District Court hearing of this matter. Notwithstanding this, after hearing explanation provided by Mr Anderson for the appellants, I am satisfied that the hearing time involved in the District Court would, for present purposes, properly amount to three days. Therefore the three day claim for appearance at the hearing and the six days for preparation for the hearing is appropriate and is allowed.

[10] Mr Robinson next submitted that the disbursement claim of $8,190.87 for Mr Pitts the surveyor appearing as an expert witness at the hearing of this matter was excessive. Once again I am under some obvious difficulty relating to this matter, given that the hearing in question related to Mr Pitts’ attendance at the District Court. Notwithstanding this, for present purposes (and given a decision I am shortly to make regarding the claim for Mr Pitts’ costs for completing survey work on the parcels limitation) I am prepared to allow this expert witness claim of $8,190.87. Mr Robinson’s objection to this is dismissed.

[11] Lastly, I turn to the not insubstantial claim for surveying costs of $13,045.74 which the appellants seek here relating to Mr Pitts’ work in removing the limitation as to parcels. As to this, it is my view that this cost for removal of the limitation as to parcels is not appropriately charged here. The removal of the parcels limitation from the title to the appellants’ property, as I see it, provided an enhancement in the sense that any similar issues as arose regarding the sale of the property to the respondent here would be obviated without question once the parcels limitation itself was removed. This, therefore, in one sense might be said to have improved the value

of the appellants’ property, it being a matter for which they alone would have benefitted. That said, I disallow the claim for $13,045.74 surveying costs here.

[12] Having said that, a similar issue must be raised with respect to the costs claimed for Alistair Paterson which were originally $9,545 including GST. As I have noted at para [3] above, the appellants however have reduced their original claim for his costs to a sum of $2,875 now which I presume is on the basis that this portion is a true disbursement here and the balance would have related to work undertaken to remove the parcels limitation. If I may be wrong in this aspect, and the remaining costs of $2,875 which the appellants seek do cover Mr Paterson’s legal costs directed at removing the limitation as to parcels from the title, then this amount similarly is not to be awarded here.

[13] Taking all these matters into account therefore the following amounts are to be awarded by way of costs and disbursements to the appellants (as itemised more specifically in the attached Schedule) with respect to the District Court and High Court proceeding here:

(a) Costs on the High Court appeal - $13,157.00

(b) Disbursements on the High Court appeal - $2,451.06 (c) Costs on the District Court proceeding - $22,862.50. (d) Todd Whitcombe - expert witness fee - $3,622.50.

(e) Nigel Pitts - surveyor’s expert witness fee - $8,190.87.

(f) District Court filing fee on the statement of claim and counter claim -

$169.20

(g) District Court hearing photocopying - $128.46 (h) District Court hearing binding - $26.39

(i) Alistair Paterson legal fees (if a true disbursement and not for work undertaken just to remove the parcels limitation) - $2,875.00.

[14] That is my decision on the costs matter. I reserve the right to ensure that I have got all the figures calculation correct but my decision and the reasons for it will not change.

...................................................

Gendall J

Solicitors:

Alistair D Paterson, Dunedin

Gallaway Cook Allan, Dunedin

Copy to L A Anderson, Dunedin

SCHEDULE

I High Court Costs on the Appeal (All Category 2B)
Costs
Item		Time Allowance	Rate		Award
52	Commencement appeal	1	$2,230.00		$2,230.00
54	Case Management
10	Preparation first conference	0.4	$2,230.00		$892.00
13	Appearance (not required)	0	$2,230.00
55	Preparation case on appeal	1	$2,230.00		$2,230.00
56	Preparation written submissions	3	$2,230.00		$6,690.00
57	Appearance at hearing	0.5	$2,230.00		$1,115.00
29	Sealing judgment	0.2	$2,230.00		$446.00
Total					$13,157.09	$13,157.09
Disbursements
Filing fee				$540.00
Scheduling fee				$1,600.00
Fee on sealing judgment				$50.00
Photocopying				$237.60
Binding				$23.46
Total				$2,451.06		$2451.06
II District Court Costs (All Category 2B)
Costs
Item		Time Allowance	Rate		Award
2	Response to claim	1	$1,550.00		$1,550.00
7.1	Counterclaim	0.5	$1,550.00		$775.00
3	Information capsule	2	$1550.00		$3,100
9.6	Production of documents	0.75	$1,550.00		$1,162.50
9.7	Inspection of plaintiff ’s documents	1	$1,550.00		$1,550.00
8.1	Preparation JSC	0.25	$1,550.00		$387.50
8.2	Appearance JSC	0.25	$1,550.00		$387.50
17.1	Preparation for hearing	6	$1,550.00		$9,300.00
17.2	Appearance at hearing	3	$1,550.00		$4,650.00
Total					$22,862.50	$22,862.50
III Expert Witnesses’ Fees
Todd Whitcombe (legal fees on hearing matters				$,3,622.50
Nigel Pitts (surveyor)				$8,190.87
Total				$11,813.37		$11,813.37
IV District Court Disbursements and Other Amounts Claimed
Filing fee on statement of claim and counterclaim				$169.20
Photocopying				$128.46
Binding				$26.39
Total				$324.05		$324.05
Additional Legal costs: Alister Paterson (if for removing parcels limitation NOT to be awarded)				$2,875.00		$2,875.00
TOTAL						$56,583.07