Street v Fountaine [2018] NZHC 1671 (9 July 2018)

Last Updated: 13 July 2018

IN THE HIGH COURT OF NEW ZEALAND MASTERTON REGISTRY I TE KŌTI MATUA O AOTEAROA TE WHAKAORIORI ROHE

CIV-2014-435-6 [2018] NZHC 1671

BETWEEN	CHRISTOPHER JOHN STREET PHILIP JOHN ENGLAND MICHAEL JOHN STREET JOAN ISABELLA STREET Plaintiffs
AND	REX ALISTAIR FOUNTAINE First Defendant
AND	ASHBY DOWNS LIMITED Second Defendant
AND	ANZ BANK NEW ZEALAND LIMITED Third Defendant
AND	MARGARET ELIZABETH FOUNTAINE Fourth Defendant

Hearing:	on the papers
Counsel:	R K Macdonald for the Plaintiffs T G Stapleton QC for the Defendants
Judgment:	9 July 2018

JUDGMENT OF CULL J

[1] The plaintiffs, the Street Trustees, seek costs in relation to proceedings in this Court. In 2016, Clifford J determined the Street Trustees’ claim to register an easement was unsuccessful.¹ The Judge awarded 2B scale and increased costs in favour of the

¹ Street v Fountaine [2016] NZHC 2343.

STREET v FOUNTAINE [2018] NZHC 1671 [9 July 2018]

defendants.² The Street Trustees successfully appealed the substantive decision to the Court of Appeal.³ The Court of Appeal also quashed the costs orders made in the High Court and awarded costs to the Street Trustees on a band 2B basis, together with disbursements to be fixed by the Registrar of the High Court.⁴

[2] The Street Trustees have subsequently filed two memoranda in this Court seeking a determination of the costs and disbursements to be paid to them by the defendants. The first and second defendants oppose some of the items claimed by the Street Trustees.

[3] As I was not the trial Judge in this Court and the Court of Appeal has fixed costs on a 2B basis, the calculation of costs claimed by the Street Trustees must be assessed accordingly.

[4] The defendants dispute several items claimed by the Street Trustees on a number of grounds, including:

(a) items not being required for the proceedings;

(b) excessive claims compared with the defendants’ costs awarded previously; or

(c) items beyond the time allocations and matters in Schedule 3 of the High Court Rules 2016.

[5] I now set out the items in dispute, the defendants’ objections and my findings in relation to each.

² Street v Fountaine [2016] NZHC 2670.

³ Street v Fountaine [2018] NZCA 55.

⁴ At [163]–[164].

Memorandum dated 31 October 2014

[6] The defendants’ objection to the claim for preparation of this memorandum is that it was not prepared by plaintiffs’ counsel but by defendants’ counsel and was not required for a case management conference, mentions hearing or callover.

[7] It is correct that the memorandum was prepared by the defendants’ counsel, but was signed by both parties for the purpose of consent orders being made. For that reason, half of the cost sought is approved, namely 0.2 days at the rate of $1,990, totalling $398. This reflects plaintiffs’ counsel’s time in approving the consent orders and signing the memorandum.

Memoranda dated 13 April 2015 and 14 April 2015

[8] The defendants’ objection is that these memoranda were not required for a case management conference, mentions hearing or callover and were described by Clifford J at [4] of his minute dated 30 April 2015 as part of “the recent flurry of unnecessary correspondence with the Registrar, as recorded in the various memoranda filed”.

[9] The minute of Clifford J at [4] concludes that the recent flurry of unnecessary correspondence “shows that there is no point in a settlement conference at the present time”. In light of His Honour’s remarks, I have perused the memoranda and consider they were not required in the progress of the litigation. I decline the claim for these memoranda.

Memoranda dated 2 November 2015 and 4 November 2015

[10] The defendants’ objection is that these memoranda were not required for a case management conference, mentions hearing or callover, and reference is made to a further minute of Clifford J dated 27 November 2015 recording that “the state of affairs between counsel as recorded in the memoranda recently filed is unacceptable”.

[11] I am disallowing these memoranda for the same reasons above, given the intemperate nature of the memoranda and Clifford J’s expressed view.

Memoranda dated 30 November 2015, and 3 December 2015

[12] The defendants’ objection is that these memoranda were not required for a case management conference, mentions hearing or callover or by the minute of Clifford J dated 27 November 2015, referred to above.

[13] These further memoranda are also disallowed as not being necessary to advance the litigation.

Evaluating defendant correspondence

[14] The plaintiffs’ claim time for evaluating the defendants’ correspondence dated 13 July, 20 July and 22 October 2015. The defendants’ objection is that these are items outside Schedule 3 of the High Court Rules.

[15] These items are disallowed as not being appropriately claimed in accordance with Schedule 3 of the High Court Rules.

Time allocated for preparing common bundle

[16] The plaintiffs have claimed 2.5 days for common bundle preparation. The defendants object, saying that there should be only two days, consistent with the defendants’ own previous costs claim that the appropriate costs allowance is two days at $2,230 per day.

[17] Two days is approved for preparing the common bundle.

Time allocated for preparing chronology

[18] The plaintiffs seek 2.5 days. The defendants object on the same grounds above, that the defendants claimed two days at $2,230 per day in their costs claim and that is the appropriate claim.

[19] Two days are approved at $2,230 per day.

Time allocated for appearance at the hearing

[20] The plaintiffs claim seven days, having previously submitted that five days was the appropriate allowance, when the defendants made their costs claim. The defendants object, as no reasons are advanced by the plaintiffs for the unexplained increase from five days to seven days, and submit six days is appropriate.

[21] The appropriate costs allowance is for six days at $2,230 per day, totalling
$13,380.00.

Dealing with notices to admit facts and produce documents

[22] The defendants object to the plaintiffs’ claim, as the plaintiffs did not take any step in the proceeding by filing either applications to set aside the notices or notices of opposition to oppose them.

[23] This claim is disallowed.

[24] The plaintiffs’ other claims for costs are allowed.

[25] The calculation of costs to the Street Trustees on a 2B basis is $58,805.

[26] The defendants also dispute a number of the disbursements claimed, including:

(a) binding and paper fees;

(b) High Court room hire fee and copying;

(c) preparation and filing of a caveat; and

(d) title searches.

[27] The Court of Appeal directed that disbursements were to be fixed by the Registrar of the High Court and I make that direction accordingly.

Result

[28] In accordance with the Court of Appeal’s decision, I order costs of $58,805 and disbursements are to be fixed by the Registrar.

Cull J