Michna v Michna-Konigstorfer [2016] NZHC 1769 (1 August 2016)

High Court of New Zealand

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Michna v Michna-Konigstorfer [2016] NZHC 1769 (1 August 2016)

Last Updated: 31 August 2016

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

CIV-2015-406-000030 [2016] NZHC 1769

IN THE MATTER	of an Application for Summary Judgment
AND
IN THE MATTER	of an Application to enforce a foreign judgment in New Zealand
BETWEEN	MARTIN CARL FRANK MICHNA Plaintiff
AND	ANNETTE MICHNA-KONIGSTORFER Defendant

Hearing:	1 August 2016 (Determined on the papers)
Counsel:	P J Radich for Plaintiff Q A M Davies for Defendant
Judgment:	1 August 2016

_{COSTS JUDGMENT OF ASSOCIATE JUDGE MATTHEWS}

[1] The plaintiff discontinued this proceeding. Rule 15.23 of the High Court Rules provides that unless the defendant otherwise agrees, or the Court otherwise orders, the plaintiff must pay costs of and incidental to the proceeding up to and including the discontinuance.

[2] The parties have been unable to reach agreement in relation to costs. The defendant seeks an order for costs on a 2B basis together with an uplift of 50 per cent. She also seeks an order that the plaintiff pay her disbursements. The plaintiff accepts that an order for costs may be made that says that costs should be calculated on a Category 1 Band A basis, without any uplift. He also says that the disbursements to be awarded to the defendant should not include a claimed charge

_{for a German translation.}

MICHNA v MICHNA-KONIGSTORFER [2016] NZHC 1769 [1 August 2016]

[3] An award of costs should always reflect the complexity and significance of the proceeding. In this case the plaintiff sought to enforce in this country, by way of summary judgment, orders said to have been made in a German court. It became apparent during the course of the interlocutory phase of this case that the plaintiff’s case in this country was facing increasing difficulties and in the end the decision to discontinue it appears to have been responsibly taken. The assessment of the appropriate category for costs is governed by r 14.3. Category 1 is to be applied to proceedings of a straight-forward nature able to be conducted by counsel considered junior in the High Court. Category 2 proceedings are those of average complexity requiring counsel of skill and experience considered average in the High Court. I am quite satisfied that this case is within Category 2. Without going into the merits of the case it is accurate to record that the plaintiff’s case faced challenging legal obstacles which required, in my view, counsel of skill and experience on both sides, and that is a fair description of counsel who were engaged. I find that Category 2 is the appropriate costs category for this case.

[4] In support of an application for increased costs Mr Davies says that the High Court in New Zealand would not have enforced the German court orders as they were interlocutory orders, and in any event the orders that the plaintiff sought to enforce in this country had already been complied with in Germany. Thus he submits that the plaintiff’s case lacked merit and an increased award of costs should be ordered under r 14.6(3)(b)(ii).

[5] Mr Radich does not accept Mr Davies’ argument that the New Zealand High Court does not have jurisdiction to enforce the judgment which his client sought to enforce. He also says that throughout the case he engaged with counsel for the defendant in an endeavour to keep costs to a minimum and to concentrate on the merits of the case. He says the claim was discontinued at the earliest point that it could be.

[6] Whilst, as I have said, this case obviously faced considerable legal hurdles and was a matter of some complexity as a result, I am not satisfied that it can reasonably be found that the plaintiff’s argument lacked merit to the extent that an uplift in costs should be awarded. I am also satisfied that Mr Radich’s submission

that he endeavoured to engage on the merits of the case with the defendant throughout is borne out, as is his submission that the case was discontinued at a reasonably early point. Certainly the defendant has been put to some expense and is unquestionably entitled to costs but I do not see grounds for an increase in costs in this case.

[7] The disbursement for translation called into question by Mr Radich is explained as the costs of translating a German judgment. In the circumstances of this case I do not consider that to be unreasonable. The remaining disbursements claimed are in order.

Outcome

[8] I award to the defendant costs in the sum of $8,920 together with

disbursements in the sum of €3,639.10 for disbursements incurred in Germany and

_{$220 for a filing fee incurred in New Zealand.}

J G Matthews

Associate Judge

Solicitors:

Radich Law, Blenheim

Gascoigne Wicks, Blenheim