EA v Rennie Cox Lawyers [2017] NZHC 260 (24 February 2017)

Last Updated: 22 March 2017

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-1122 [2017] NZHC 260

BETWEEN	EA Appellant
AND	RENNIE COX LAWYERS Respondent

Hearing:	On the papers
Appearances:	R J Hollyman for Appellant E J Werry for Respondent
Judgment:	24 February 2017

JUDGMENT OF LANG J [re costs]

This judgment was delivered by me on 24 February 2017 at 2.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

_{Date...............}

EA v RENNIE COX LAWYERS [2017] NZHC 260 [24 February 2017]

[1] On 13 January 2017 I delivered a judgment dismissing both an appeal by the appellant and a cross-appeal by the respondent.¹ In doing so I expressed the tentative view that both parties had succeeded to some extent in respect of the appeal and that costs should lie where they fall.

[2] Counsel have been unable to reach agreement regarding costs. I am now required to fix costs taking into account the submissions counsel have made in their respective memoranda.

The appeal

[3] The appellant contends that she should receive an award of costs on a category 2B basis in respect of all steps taken on the appeal. The respondent contends that it was the successful party overall, but accepts that costs should lie where they fall.

[4] The guiding principle is that although costs are in the discretion of the Court, the unsuccessful party should generally contribute to the costs of the successful party.² My initial impression was that both parties had succeeded on the appeal to some extent, although the respondent had probably achieved a greater measure of success overall. For that reason my tentative view was that costs should lie where they fell.

[5] I have now reviewed the extent to which each party succeeded on the appeal. I found in favour of the respondent on the arguments that the judgment was obtained irregularly because the respondent was not entitled to apply to the District Court on a without notice basis and the amounts for which judgment was sought in respect of barrister’s fees were not liquidated sums. I found in favour of the appellant on the issue of whether a claim for interest under the Judicature Act 1908 was a claim for a liquidated amount.

[6] I also upheld the appellant’s argument that the default judgment was obtained irregularly because of misleading and/or incomplete information provided by

¹ _{EA v Rennie Cox [2017] NZHC 5.}

² High Court Rules, rr 14.1 and 14.2(a).

counsel for the respondent to the Judge who considered the respondent’s applications in the District Court. Having reached that point, I found against the appellant on the issue of whether she was entitled as of right to have the judgment set aside. I then exercised my discretion against setting the judgment aside.

[7] Finally, I set aside two awards of costs made in favour of the respondent in the District Court on the basis that the judgment had been irregularly obtained.

[8] This analysis confirms my view that, although both parties succeeded to some extent, the respondent achieved a greater measure of overall success because it succeeded in respect of more issues than the appellant and it also retained the benefit of the bulk of the default judgment. Given the respondent’s stance, however, I direct that costs should lie where they fall in respect of all steps taken prior to 2 August

2016 and in respect of the substantive hearing on 26 November 2016.

[9] I accept the appellant’s submission that she should receive an award of costs in respect of the hearing that began on 2 August 2016. This had to be aborted after counsel then appearing for the respondent accepted he was in a position of conflict. I award the appellant costs calculated on a category 2B basis in respect of a half day hearing and a further day to reflect wasted preparation.

The cross-appeal

[10] The appellant succeeded on this issue but it required minimal preparation and argument. I award the appellant costs on the cross-appeal on the basis of a half day

_{calculated on a category 2B basis.}

Lang J

Solicitors:

Paul Friedlander, Auckland

Counsel:

R J Hollyman, Auckland

E St John, Auckland