Robinson v Whangarei Heads Enterprises Limited [2018] NZHC 751 (20 April 2018)

Last Updated: 8 May 2018

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY I TE KŌTI MATUA O AOTEAROA WHANGĀREI TERENGA PARĀOA ROHE

CIV-2013-488-223 [2018] NZHC 751

BETWEEN	JOHN CLIFFORD WALTER ROBINSON Plaintiff
AND	WHANGAREI HEADS ENTERPRISES LIMITED First Defendant VICTOR LEONARD FREAKLEY Second Defendant OFFICIAL ASSIGNEE Third Defendant

Hearing:	On the papers
Counsel:	BA Vautier for defendants JCW Robinson, plaintiff in person
Judgment:	20 April 2018

JUDGMENT OF FITZGERALD J

[As to costs]

This judgment was delivered by me on 20 April 2018 at 4 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date...............

Solicitors: Glaister Ennor, Auckland To: JCW Robinson, Whangarei

Robinson v Whangarei Heads Enterprises Limited [2018] NZHC 751 [20 April 2018]

Introduction

[1] I delivered my substantive judgment in this matter on 1 February 2018.¹ The background to these proceedings is somewhat lengthy and complex, and is set out in my substantive judgment. It is not repeated here.

[2] At the conclusion of my judgment, I dismissed each of Mr Robinson’s claims against the first and second defendants. I indicated my preliminary but non-binding view that costs ought to follow the event in the ordinary way, on a 2B basis. The parties have been unable to agree costs and have filed costs memoranda. This judgment now determines the costs of this proceeding.

Approach to costs

[3] As both parties recognise, r 14.2 of the High Court Rules provides that the party who fails with respect to a proceeding should pay the costs of the party who succeeds. Mr Robinson does not dispute that he ought to pay the costs of this proceeding. Rather, he objects to certain aspects of the costs which have been claimed by the defendants.

[4] As noted above, there are two defendants to this proceeding. As I noted at [5] and [104] of my substantive judgment, Mr Robinson’s claims were directed at the second defendant, Mr Freakley, only and not the first defendant, Whangarei Heads Enterprises Limited (“WHEL”). Despite this, however, I noted in my substantive judgment that:²

... it is difficult to see how WHEL, having the same solicitor/counsel as Mr Freakley, will have incurred any, or any substantial, costs that would not have been incurred by Mr Freakley in any event. On that basis, it would seem appropriate that there is only one claim for costs by the defendants. If WHEL/Mr Freakley take a different view, that will need to be addressed in their costs memorandum.

[5] In the defendants’ cost memorandum, WHEL does not make a separate claim for costs, other than to claim costs for commencement of a defence. WHEL says that at the very outset of this matter, it was not immediately apparent that no additional

¹ Robinson v Whangarei Heads Enterprises Ltd [2018] NZHC 43.

² At [104].

matters of substance would need to be attended to on behalf of WHEL separate from Mr Freakley, and WHEL accordingly had to consider its position and defence.

Steps in the proceedings objected to by Mr Robinson

[6] Mr Robinson does not take issue with the costs sought on behalf of the defendants, save for the following matters:

(a) First, he objects to the inclusion of item 2 in the schedule to the defendants’ costs memorandum, being the commencement of a defence by WHEL on a scale basis. He submits that this cost, being $4,460.00, ought to be removed.

(b) He seeks a reduction in the time allocation for the defendants’ preparation of briefs, as there was only brief of evidence put forward by the defendants, and accordingly 2.5 days with a total cost of
$5,575.00 is overly generous.

(c) He also objects to the defendants claiming a full two days for appearance at the hearing, and submits that 1½ days (or six quarter days) is more appropriate.

(d) Although not an objection in the strict sense, Mr Robinson also notes that a sum of $1,115.00 for “costs credited to the plaintiff by the High Court prior to hearing” (which are said to relate to the preparation for two case management conferences) is to be offset against the costs awarded to the defendants.

[7] Mr Robinson also notes that he has already paid security for costs of $15,000, which will need to be released to the defendants, such that only the net balance payable on the costs judgment will be payable by him to the defendants.

Discussion

[8] I address each of the objections raised by Mr Robinson and summarised above.
[9] I agree with Mr Robinson that it is not appropriate for WHEL to claim a full additional two days (i.e. in addition to the full two days already claimed by Mr Freakley) in relation to commencement of a defence. Nevertheless, it remains the fact that Mr Robinson did purport to bring his claim against both Mr Freakley and WHEL, and WHEL’s position will have had to have been considered at the outset of this proceeding, i.e. in addition to that of Mr Freakley. I accordingly order that the amount claimed by WHEL for the commencement of defence (item 2) is reduced to one day, and thus an amount of $2,230.00 is included in the costs award, rather than
$4,460.00.

[10] I also agree with Mr Robinson that 2.5 days for the defendants’ preparation of briefs is overly generous in the particular circumstances of this case. First, only one relatively short brief was prepared by Mr Freakley. Further, and through my review of the earlier proceedings and evidence in related proceedings, it is clear that Mr Freakley’s brief drew heavily from earlier briefs or affidavits prepared on his behalf. Given this, I consider an appropriate allocation for defendants’ preparation of briefs (item 30) is one day only, and thus an amount of $2,230.00 rather than $5,575.00 be awarded for that step.

[11] I also accept Mr Robinson’s submission that it is inappropriate to allocate a full two days for appearance at the hearing (item 26). In the event, this matter concluded at lunch-time on the second day. Accordingly, an appropriate allocation is 1.5 days, resulting in $3,345.00 being awarded for step 26, rather than $4,460.00.

[12] Finally, by minute dated 4 July 2017, Associate Judge Bell ordered that Mr Robinson be given a “costs credit of .2 of a day under category 2”, and stated that if costs were later awarded to Mr Robinson, he could use this credit to claim a deduction.

[13] By my calculation, that equates to a cost credit of $446. I have reviewed the earlier minutes and decisions in this proceeding, and cannot see any other “costs credits” which would take the amount to that mentioned by Mr Robinson of $1,115.00. There is accordingly a credit against the costs award against Mr Robinson of $446.00.
[14] On the basis of the above, the total costs awarded to the defendants is $46,384, as set out in the schedule to this judgment. I add that this is subject to Mr Robinson pointing to any other “costs credits” awarded in his favour other than that of $446.00 referred to a [13] above. Mr Robinson has 10 working days from the date of this judgment to file a memorandum pointing to any other costs credits ordered in this proceeding, failing which the amount of costs awarded to the defendants of $46,384 is final.

[15] Disbursements are also claimed, for expenses relating to filing amended pleadings and sealing the judgment. The total sum of $380.00 is awarded. That provides a total costs and disbursements figure of $46,764.00, as set out in the schedule.

[16] Pursuant to the order of Heath J made on 30 August 2013, on 19 February 2014, Mr Robinson paid $15,000 into Court as security for costs. I make a direction that this sum plus interest is to be released to the defendants for the purpose of applying against the costs due from Mr Robinson.






Fitzgerald J

Item	Description	Allocated Days	Daily Recovery Rate	Amount
2B Costs
2	Commencement of defence by first defendant	2	$2,230.00	$4,460.00
2	Commencement of defence by second defendant	1	$2,230.00	$2,230.00
9	Pleading in response to amended pleading	0.6	$2,230.00	$1,338.00
11	Filing memorandum for subsequent case management (7 Sept 2015)	0.2	$2,230.00	$446.00
12	Appearance at subsequent case management	0.3	$2,230.00	$669.00
11	Filing memorandum for mentions hearing (1 Oct 2015)	0.2	$2,230.00	$446.00
12	Appearance at subsequent case management	0.3	$2,230.00	$669.00
11	Filing memorandum for subsequent case management (26 Oct 2015)	0.2	$2,230.00	$446.00
12	Appearance at subsequent case management	0.3	$2,230.00	$669.00
11	Filing memorandum for subsequent case management (26 Nov 2015)	0.2	$2,230.00	$446.00
12	Appearance at subsequent case management	0.3	$2,230.00	$669.00
11	Filing memorandum for subsequent case management (2 February 2016)	0.2	$2,230.00	$446.00
9	Pleading in response to amended pleading (March 2016)	0.6	$2,230.00	$1,338.00
11	Filing memorandum for subsequent case management (24 May 2016)	0.2	$2,230.00	$446.00
11	Filing memorandum for subsequent case management (14 June 2016)	0.2	$2,230.00	$446.00
12	Appearance at subsequent case management	0.3	$2,230.00	$669.00
11	Filing memorandum for subsequent case management (11 Aug 2016)	0.2	$2,230.00	$446.00
11	Filing memorandum for subsequent case management (6 Dec 2016)	0.2	$2,230.00	$446.00
12	Appearance at subsequent case management	0.3	$2,230.00	$669.00
9	Pleading in response to amended pleading (Feb 2017)	0.6	$2,230.00	$1,338.00
11	Filing memorandum for subsequent case management (Aug 2017)	0.2	$2,230.00	$446.00
12	Appearance at subsequent case management	0	0	$0
11	Filing memorandum for subsequent case management	0.2	$2,230.00	$446.00
15	Pre-Trial Conference (1 September 2017)	0.5	$2,230.00	$1,115.00
20	List of docs on discovery	2.5	$2,230.00	$5,575.00
21	Inspection	1.5	$2,230.00	$3,345.00
30	Defendant preparation of briefs	1	$2,230.00	$2,230.00
32	Defendant preparation of list of issues, authorities and common bundle	2	$2,230.00	$4,460.00
33	Preparation for hearing	3	$2,230.00	$6,690.00
26	Appearance at hearing of defended application	1.5	$2,230.00	$3,345.00
29	Sealing order or judgment	0.2	$2,230.00	$446.00
Costs before credits				$46,830.00
Costs credit				-$446.00
Total Scale 2B Costs				$46,384.00
Disbursements
Filing fees – amended pleadings (3 times)			$330.00	$330.00
Sealing fee			$50.00	$50.00
Total disbursements				$380.00
Total costs and disbursements				$46,764.00