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High Court of New Zealand Decisions |
Last Updated: 11 October 2018
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IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
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CIV-2011-409-1178
[2018] NZHC 2544 |
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BETWEEN
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VINCENT JAMES CLAYTON
First Plaintiff
LINDA JOYCE WESTBURY
Second Plaintiff
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|
AND
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PHILIPPA CURRIE
First Defendant
RAYMOND DONNELLY & CO
Second Defendant
THE CROWN SOLICITOR AT CHRISTCHURCH
Third Defendant
THE ATTORNEY-GENERAL
Fourth Defendant
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CIV-2013-409-1441
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BETWEEN
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PETER LLOYD MACHIRUS
First Plaintiff
NADIA MAVANA PELENATO
Second Plaintiff
GARRY GEORGE MORELL
Third Plaintiff
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|
AND
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PHILIPPA CURRIE
First Defendant
RAYMOND DONNELLY & CO
Second Defendant
THE CROWN SOLICITOR AT CHRISTCHURCH
Third Defendant
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VINCENT JAMES CLAYTON v PHILIPPA CURRIE [2018] NZHC 2544 [28 September 2018]
THE ATTORNEY-GENERAL
Fourth Defendant
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On the papers:
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Counsel:
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Plaintiffs in Person
J C Pike QC and S K Barr for Defendants
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Judgment:
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28 September 2018
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JUDGMENT OF CHURCHMAN J (COSTS)
[1] In the Court’s judgment of 30 July 2018, the Court found that each of the plaintiff’s causes of action failed.1 The Court stated that its preliminary view was that, given the apparently impecunious nature of all the plaintiffs, there was little point in making a costs award but, should the defendants wish to pursue such an application, they were to file a memorandum within 10 working days, with the plaintiffs having 10 working days to respond.2
Adjournment of costs
[2] Despite the Court observing that there seemed to be little point in pursuing costs given the financial capacity of the plaintiffs, the defendants have filed an application seeking an award of costs against the plaintiffs. It is worth noting that, if the Crown did not seek a costs award, then this means the costs would have to be borne by the taxpayer. Arguably, the Crown is under an obligation to recover costs in this situation.
[3] The plaintiffs, who are self-represented, have all requested that the issue of costs be adjourned until after the appeal by Mr Machirus to the Court of Appeal.
[4] Under the High Court Rules, the general principle is that “the party who fails with respect to a proceeding ... should pay costs to the party who succeeds”.3 The
1 Clayton v Currie [2018] NZHC 1898.
2 At [239].
3 High Court Rules 2016, r 14.2(1)(a).
fact that an appeal has been brought does not change the rights of the parties.4 Although the Courts have a general power to stay execution, this power is not to be abused so as to delay payment.5 Should Mr Machirus’ appeal prove successful, any order as to costs may be set aside. I therefore decline to adjourn the issue of costs until the appeal is heard.
Plaintiffs’ ability to pay
[5] The defendants have acknowledged that Mr Machirus is an undischarged bankrupt and that, with the exception of Mr Clayton, the plaintiffs had applied for legal aid, although only Ms Westbury was successful in doing so, receiving legal aid until the conclusion of the 2016/2017 interlocutories. However, the defendants submit that, in the absence of specific evidence from the plaintiffs as to their current financial circumstances, the ability of the plaintiffs to meet an order for costs is unknown.
[6] The plaintiffs, in their memoranda in response, have provided the Court with information as to their respective financial positions. All have indicated that they are not currently in a position to pay the amount sought by the defendants.
[7] Among the plaintiffs, Mr Machirus, Mr Morell and Ms Pelenato, only Ms Pelenato is currently in paid employment, working part time. They have stated that, should full costs be awarded to the defendants, they would most likely be declared bankrupt. The plaintiffs, Mr Clayton and Ms Westbury, have advised that, should costs be awarded against them, then they would only be able to make weekly repayments; while this would cause them some financial hardship, every effort would be made to comply with a payment plan.
[8] The defendants submit that, in any event, costs may be sought against an apparently impecunious individual party who is not legally aided. They submit that the ability or inability to meet an order for costs does not affect entitlement but, rather, is relevant to enforcement. This submission is made in reliance on Chief Executive of
4 Polini v Gray (1879) LR 12 Ch D 438 (CA).
Department of Labour v Taito, in which the Court of Appeal agreed with the following submission of the appellant:6
Nothing about these appeals warrants a departure from the presumption that costs follow the event. There is no evidence before the court concerning the respondent’s ability to pay. In any event, this factor does not affect entitlement to costs but is relevant only to enforcement.
[9] The defendants submit that costs awards are appropriate and, if made, any decision as to enforcement would need to be made on a principled basis by the Crown.
[10] While I acknowledge that the plaintiffs are self-represented and will, no doubt, find it difficult to pay costs, no evidence has been presented that would suggest their financial situations have undergone any significant changes since they commenced these proceedings.7 Given that Thomas J had previously declined the defendants’ application for security for costs, the plaintiffs would have been aware that costs in the order of $120,000 could potentially be awarded against them should their claim for damages be unsuccessful.8 It therefore cannot be said that the plaintiffs did not come into these proceedings with their eyes wide open. For these reasons, the plaintiffs’ potential difficulty in paying will not be a factor in my awarding costs against them.
[11] However, the plaintiffs, Mr Clayton and Ms Westbury, have indicated that they would be able to pay costs by weekly instalments. While this would appear to be the most practical outcome, this is a matter that the parties will need to resolve between themselves.
Scale costs sought
[12] The defendants seek scale costs on a 2B basis.
[13] The costs are sought for:
(a) preparation of and filing of pleadings and amended pleadings;
8 Clayton v Currie [2017] NZHC 1302 at [113]- [125].
(b) preparation for and attendance at case-management conferences/callovers (excluding those that were concerned with the interlocutory hearings);
(c) preparation of the defendants’ discovery list and inspection of the plaintiffs’ documents;
(d) preparation for trial; and
(e) appearance at trial, for which approval of second counsel is sought.
[14] While I am prepared to allow second counsel, I am not allowing the defendants’ separate claims for preparation for trial for each of the five plaintiffs, given the commonality of issues as between the plaintiffs.
[15] As the scale costs changed over the different time-periods of the litigation, the scale costs awarded will reflect this. Where costs relate to all plaintiffs, they have been divided amongst the plaintiffs. In the Crown’s submissions on costs, it was noted that costs incurred prior to November 2017 had not been claimed against Ms Westbury as she was in receipt of legal aid until that time. In the costs calculations submitted by the Crown, the costs prior to November 2017 were therefore divided by four instead of five, excluding Ms Westbury. However, this merely passed her costs onto the other four plaintiffs. It is my view that the correct approach would be to still divide these costs by five but to not include the share that would have been attributed to Ms Westbury on her costs schedule. That is the approached that I have elected to take.
Conclusion
[16] Accordingly, costs on a 2B basis and disbursements are awarded in favour of the defendants as follows:
(a) against Mr Clayton in the amount of $21,082.64 (as per schedule 1);
(b) against Ms Westbury in the amount of $10,778.89 (as per schedule 2);
(c) against Mr Machirus in the amount of $16,245.43 (as per schedule 3);
(d) against Ms Pelenato in the amount of $16,245.43 (as per schedule 4); and
(e) against Mr Morell in the amount of $16,245.43 (as per schedule 5).
Schedule 1 Total costs claimed for Clayton
|
Summary
|
Time
|
Cost claim
|
Total
|
|
|
August 2011
|
2. Commencement of defence by defendants (statement of defence dated 2
August 2011)
|
2
|
$3,760.00
|
$3,760.00
|
|
March 2015
|
9. Pleading in response to amended pleading (amended statement of defence
dated 13 March 2015)
|
0.6
|
$1,194.00
|
$1,194.00
|
|
May 2015
|
10. Preparation for first case management conference
|
0.4
|
$796.00 ÷ 5
|
$159.20
|
|
11. Filing memorandum for first case management conference
|
0.4
|
$796.00 ÷ 5
|
$159.20
|
|
|
13. Appearance at first case management conference
|
0.3
|
$597.00 ÷ 5
|
$119.40
|
|
|
Disbursements – Air travel
|
|
$443.48 ÷ 5
|
$88.70
|
|
|
July 2015–
Nov 2017
|
9. Pleading in response to amended pleading (amended statement of defence
dated 24 December 2015)
|
0.6
|
$1,338.00
|
$1,338.00
|
|
9. Pleading in response to amended pleading (amended statement of defence
dated 21 October 2016)
|
0.6
|
$1,338.00
|
$1,338.00
|
|
|
Disbursements – Court filing fees
|
|
$95.65
|
$95.65
|
|
|
July 2015–
Nov 2017
|
11. Filing memorandum for telephone conference on 30 August 2017
|
0.4
|
$892,00÷5
|
$178.40
|
|
12. Appearance at telephone conference on 30 August 2017
|
0.20
|
$446.00÷5
|
$89.20
|
|
|
20. List of documents on discovery
|
2.5
|
$5,575.00÷5
|
$1,115.00
|
|
|
21. Inspection of documents
|
1.5
|
$3,345.00÷5
|
$669.00
|
|
|
2017–2018
|
11. Filing memorandum for telephone conference on 23 November 2017
|
0.4
|
$892.00÷5
|
$178.40
|
|
12. Appearance at telephone conference on 23 November 2017
|
0.2
|
$446.00÷5
|
$89.20
|
|
|
11. Filing memorandum for telephone conference on 21 March 2018
|
0.4
|
$892.00÷5
|
$178.40
|
|
|
12. Appearance at telephone conference on 21 March 2018
|
0.2
|
$446.00÷5
|
$89.20
|
|
|
12. Appearance at telephone conference on 13 June 2018
|
0.2
|
$446.00÷5
|
$89.20
|
|
|
|
30. Defendants’ preparation of briefs or affidavits
|
2.5
|
$5,575.00÷5
|
$1,115.00
|
|
32. Defendants’ preparation of authorities and common bundle
|
2.0
|
$4,460.00÷5
|
$892.00
|
|
|
33. Preparation for hearing
|
3.0
|
$6,690.00÷5
|
$1,338.00
|
|
|
34. Appearance at hearing for principal counsel
|
6.75
|
$15,052.50÷5
|
$3,101.50
|
|
|
35. Appearance at hearing for second counsel
|
6.75
|
$7,526.25÷5
|
$1,505.25
|
|
|
Disbursements
Accommodation (2x counsel, 24-29 June; 1-4 July 2018) = $3,008.00
Air travel (2x counsel, WGT/CHCH 24, 29 June; 1, 4 July) = $2,504.83
Meals (2x counsel, 24-29 June; 1-4 July 2018)
= $800.64
Courier fees = $14.25 Photocopying = $4,461.87
|
$11,013.68÷5
|
$2,202.74
|
||
|
Total costs and disbursements
|
$21,082.64
|
|||
Schedule 2 Total costs claimed for Westbury
|
Date
|
Summary
|
Time
|
Cost claim
|
Total
|
|
2017–2018
|
11. Filing memorandum for telephone conference on 23 November 2017
|
0.4
|
$892.00÷5
|
$178.40
|
|
12. Appearance at telephone conference on 23 November 2017
|
0.2
|
$446.00÷5
|
$89.20
|
|
|
11. Filing memorandum for telephone conference on 21 March 2018
|
0.4
|
$892.00÷5
|
$178.40
|
|
|
12. Appearance at telephone conference on 21 March 2018
|
0.2
|
$446.00÷
|
$89.20
|
|
|
12. Appearance at telephone conference on 13 June 2018
|
0.2
|
$446.00÷5
|
$89.20
|
|
|
30. Defendants’ preparation of briefs or affidavits
|
2.5
|
$5,575.00÷5
|
$1,115.00
|
|
|
32. Defendants’ preparation of authorities and common bundle
|
2.0
|
$4,460.00÷5
|
$892.00
|
|
|
33. Preparation for hearing
|
3.0
|
$6,690.00÷5
|
$1,338.00
|
|
|
34. Appearance at hearing for principal counsel
|
6.75
|
$15,052.50÷5
|
$3,101.50
|
|
|
35. Appearance at hearing for second counsel
|
6.75
|
$7,526.25÷5
|
$1,505.25
|
|
|
Disbursements
Accommodation (2x counsel, 24-29 June; 1-4 July 2018) = $3,008.00
Air travel (2x counsel, WGT/CHCH 24, 29 June; 1, 4 July) = $2,504.83
Meals (2x counsel, 24-29 June; 1-4 July 2018)
= $800.64
Courier fees = $14.25 Photocopying = $4,461.87
|
$11,013.68÷5
|
$2,202.74
|
||
|
Total costs and disbursements
|
$10,778.89
|
|||
Schedule 3 Total costs claimed for Machirus
|
Date
|
Summary
|
Time
|
Cost claim
|
Total
|
|
May 2015
|
10. Preparation for first case management conference
|
0.4
|
$796.00÷5
|
$159.20
|
|
11. Filing memorandum for first case management conference
|
0.4
|
$796.00÷5
|
$159.20
|
|
|
13. Appearance at first case management conference
|
0.3
|
$597.00÷5
|
$119.40
|
|
|
Disbursements – Air travel
|
|
$443.48÷5
|
$88.70
|
|
|
July 2015–
Nov 2017
|
11. Filing memorandum for telephone conference on 30 August 2017
|
0.4
|
$892,00÷5
|
$178.40
|
|
12. Appearance at telephone conference on 30 August 2017
|
0.20
|
$446.00÷5
|
$89.20
|
|
|
20. List of documents on discovery
|
2.5
|
$5,575.00÷5
|
$1,115.00
|
|
|
21. Inspection of documents
|
1.5
|
$3,345.00÷5
|
$669.00
|
|
|
July 2015–
2017
|
2. Commencement of defence by defendants (statement of defence dated 24
December 2015)
|
2
|
$4,460.00÷3
|
$1,486.67
|
|
|
9. Pleading in response to amended pleading (amended statement of defence
dated 15 July 2016)
|
0.6
|
$1,338.00÷3
|
$446.00
|
|
|
9. Pleading in response to amended pleading (amended statement of defence
dated 18 September 2016)
|
0.6
|
$1,338.00÷3
|
$446.00
|
|
|
9. Pleading in response to amended pleading (amended statement of defence
dated 13 October 2016)
|
0.6
|
$1,338.00÷3
|
$446.00
|
|
|
Disbursements – Court filing fee
|
|
$191.30÷3
|
$63.77
|
|
2017–2018
|
11. Filing memorandum for telephone conference on 23 November 2017
|
0.4
|
$892.00÷5
|
$178.40
|
|
12. Appearance at telephone conference on 23 November 2017
|
0.2
|
$446.00 ÷ 5
|
$89.20
|
|
|
11. Filing memorandum for telephone conference on 21 March 2018
|
0.4
|
$892.00÷5
|
$178.40
|
|
|
12. Appearance at telephone conference on 21 March 2018
|
0.2
|
$446.00÷5
|
$89.20
|
|
|
12. Appearance at telephone conference on 13 June 2018
|
0.2
|
$446.00÷5
|
$89.20
|
|
|
|
30. Defendants’ preparation of briefs or affidavits
|
2.5
|
$5,575.00÷5
|
$1,115.00
|
|
32. Defendants’ preparation of authorities and common bundle
|
2.0
|
$4,460.00÷5
|
$892.00
|
|
|
33. Preparation for hearing
|
3.0
|
$6,690.00÷5
|
$1,338.00
|
|
|
34. Appearance at hearing for principal counsel
|
6.75
|
$15,052.50÷5
|
$3,101.50
|
|
|
35. Appearance at hearing for second counsel
|
6.75
|
$7,526.25÷5
|
$1,505.25
|
|
|
Disbursements
Accommodation (2x counsel, 24-29 June; 1-4 July 2018) = $3,008.00
Air travel (2x counsel, WGT/CHCH 24, 29 June; 1, 4 July) = $2,504.83
Meals (2x counsel, 24-29 June; 1-4 July 2018)
= $800.64
Courier fees = $14.25 Photocopying = $4,461.87
|
$11,013.68÷5
|
$2,202.74
|
||
|
Total costs and disbursements
|
$16,245.43
|
|||
Schedule 4 Total costs claimed for Pelenato
|
Date
|
Summary
|
Time
|
Cost claim
|
Total
|
|
May 2015
|
10. Preparation for first case management conference
|
0.4
|
$796.00÷5
|
$159.20
|
|
11. Filing memorandum for first case management conference
|
0.4
|
$796.00÷5
|
$159.20
|
|
|
13. Appearance at first case management conference
|
0.3
|
$597.00÷5
|
$119.40
|
|
|
Disbursements – Air travel
|
|
$443.48÷5
|
$88.70
|
|
|
July 2015–
Nov 2017
|
11. Filing memorandum for telephone conference on 30 August 2017
|
0.4
|
$892,00÷5
|
$178.40
|
|
12. Appearance at telephone conference on 30 August 2017
|
0.20
|
$446.00÷5
|
$89.20
|
|
|
20. List of documents on discovery
|
2.5
|
$5,575.00÷5
|
$1,115.00
|
|
|
21. Inspection of documents
|
1.5
|
$3,345.00÷5
|
$669.00
|
|
|
July 2015–
2017
|
2. Commencement of defence by defendants (statement of defence dated 24
December 2015)
|
2
|
$4,460.00÷3
|
$1,486.67
|
|
|
9. Pleading in response to amended pleading (amended statement of defence
dated 15 July 2016)
|
0.6
|
$1,338.00÷3
|
$446.00
|
|
|
9. Pleading in response to amended pleading (amended statement of defence
dated 18 September 2016)
|
0.6
|
$1,338.00÷3
|
$446.00
|
|
|
9. Pleading in response to amended pleading (amended statement of defence
dated 13 October 2016)
|
0.6
|
$1,338.00÷3
|
$446.00
|
|
|
Disbursements – Court filing fee
|
|
$191.30÷3
|
$63.77
|
|
2017–2018
|
11. Filing memorandum for telephone conference on 23 November 2017
|
0.4
|
$892.00÷5
|
$178.40
|
|
12. Appearance at telephone conference on 23 November 2017
|
0.2
|
$446.00÷5
|
$89.20
|
|
|
11. Filing memorandum for telephone conference on 21 March 2018
|
0.4
|
$892.00÷5
|
$178.40
|
|
|
12. Appearance at telephone conference on 21 March 2018
|
0.2
|
$446.00÷5
|
$89.20
|
|
|
12. Appearance at telephone conference on 13 June 2018
|
0.2
|
$446.00÷5
|
$89.20
|
|
|
|
30. Defendants’ preparation of briefs or affidavits
|
2.5
|
$5,575.00÷5
|
$1,115.00
|
|
32. Defendants’ preparation of authorities and common bundle
|
2.0
|
$4,460.00÷5
|
$892.00
|
|
|
33. Preparation for hearing
|
3.0
|
$6,690.00÷5
|
$1,338.00
|
|
|
34. Appearance at hearing for principal counsel
|
6.75
|
$15,052.50÷5
|
$3,101.50
|
|
|
35. Appearance at hearing for second counsel
|
6.75
|
$7,526.25÷5
|
$1,505.25
|
|
|
Disbursements
Accommodation (2x counsel, 24-29 June; 1-4 July 2018) = $3,008.00
Air travel (2x counsel, WGT/CHCH 24, 29 June; 1, 4 July) = $2,504.83
Meals (2x counsel, 24-29 June; 1-4 July 2018)
= $800.64
Courier fees = $14.25 Photocopying = $4,461.87
|
$11,013.68÷5
|
$2,202.74
|
||
|
Total costs and disbursements
|
$16,245.43
|
|||
Schedule 5 Total costs claimed for Morell
|
Date
|
Summary
|
Time
|
Cost claim
|
Total
|
|
May 2015
|
10. Preparation for first case management conference
|
0.4
|
$796.00÷5
|
$159.20
|
|
11. Filing memorandum for first case management conference
|
0.4
|
$796.00÷5
|
$159.20
|
|
|
13. Appearance at first case management conference
|
0.3
|
$597.00÷5
|
$119.40
|
|
|
Disbursements – Air travel
|
|
$443.48÷5
|
$88.70
|
|
|
July 2015–
Nov 2017
|
11. Filing memorandum for telephone conference on 30 August 2017
|
0.4
|
$892,00÷5
|
$178.40
|
|
12. Appearance at telephone conference on 30 August 2017
|
0.20
|
$446.00÷5
|
$89.20
|
|
|
20. List of documents on discovery
|
2.5
|
$5,575.00÷5
|
$1,115.00
|
|
|
21. Inspection of documents
|
1.5
|
$3,345.00÷5
|
$669.00
|
|
|
July 2015–
2017
|
2. Commencement of defence by defendants (statement of defence dated 24
December 2015)
|
2
|
$4,460.00÷3
|
$1,486.67
|
|
|
9. Pleading in response to amended pleading (amended statement of defence
dated 15 July 2016)
|
0.6
|
$1,338.00÷3
|
$446.00
|
|
|
9. Pleading in response to amended pleading (amended statement of defence
dated 18 September 2016)
|
0.6
|
$1,338.00÷3
|
$446.00
|
|
|
9. Pleading in response to amended pleading (amended statement of defence
dated 13 October 2016)
|
0.6
|
$1,338.00÷3
|
$446.00
|
|
|
Disbursements – Court filing fee
|
|
$191.30÷3
|
$63.77
|
|
2017–2018
|
11. Filing memorandum for telephone conference on 23 November 2017
|
0.4
|
$892.00÷5
|
$178.40
|
|
12. Appearance at telephone conference on 23 November 2017
|
0.2
|
$446.00÷5
|
$89.20
|
|
|
11. Filing memorandum for telephone conference on 21 March 2018
|
0.4
|
$892.00÷5
|
$178.40
|
|
|
12. Appearance at telephone conference on 21 March 2018
|
0.2
|
$446.00÷5
|
$89.20
|
|
|
12. Appearance at telephone conference on 13 June 2018
|
0.2
|
$446.00÷5
|
$89.20
|
|
|
|
30. Defendants’ preparation of briefs or affidavits
|
2.5
|
$5,575.00÷5
|
$1,115.00
|
|
32. Defendants’ preparation of authorities and common bundle
|
2.0
|
$4,460.00÷5
|
$892.00
|
|
|
33. Preparation for hearing
|
3.0
|
$6,690.00÷5
|
$1,338.00
|
|
|
34. Appearance at hearing for principal counsel
|
6.75
|
$15,052.50÷5
|
$3,101.50
|
|
|
35. Appearance at hearing for second counsel
|
6.75
|
$7,526.25÷5
|
$1,505.25
|
|
|
Disbursements
Accommodation (2x counsel, 24-29 June; 1-4 July 2018) = $3,008.00
Air travel (2x counsel, WGT/CHCH 24, 29 June; 1, 4 July) = $2,504.83
Meals (2x counsel, 24-29 June; 1-4 July 2018)
= $800.64
Courier fees = $14.25 Photocopying = $4,461.87
|
$11,013.68÷5
|
$2,202.74
|
||
|
Total costs and disbursements
|
$16,245.43
|
|||
Churchman J
Solicitors:
Luke Cunningham & Clere, Wellington for Defendants
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URL: http://www.nzlii.org/nz/cases/NZHC/2018/2544.html