Ngati Tama Custodian Trustee Limited v Phillips [2018] NZHC 771 (23 April 2018)

Last Updated: 29 May 2018

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-001317 [2018] NZHC 771

BETWEEN	NGATI TAMA CUSTODIAN TRUSTEE LIMITED Plaintiff
AND	DAVID WILLIAM PHILLIPS Respondent

Judgment:

23 April 2018

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 23 April 2018 at 11.00 am

pursuant to R 11.5 of the High Court Rules Registrar / Deputy Registrar

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

NGATI TAMA CUSTODIAN TRUSTEE LTD v PHILLIPS [2018] NZHC 771 [23 April 2018]

[1] On 2 March 2018, I gave judgment for David Phillips on a summary judgment application brought against him by Ngati Tama Custodian Trustee Ltd.¹ The matter had been part-heard from a hearing adjourned in February 2017. Mr Phillips now seeks costs. Ngati Tama opposes any costs award on the grounds that for most of the proceeding Mr Phillips has either been unrepresented or legally aided. It makes the concession that, to the extent costs could be payable, they should be on a 2B basis but limited to the preparation of written submissions for and appearance at the 7 February 2018 hearing. If costs were to be awarded Ngati Tama seeks to have them reduced by 75 per cent to reflect the way in which Mr Phillips has managed his defence of the summary judgment application.

[2] The background to the judgment is as follows. Ngati Tama commenced the proceedings in June 2016 asserting a breach by Mr Phillips of a settlement agreement between the parties which resolved other litigation in relation to the intellectual property associated with a system known as the MVH system. Ngati Tama sought various forms of relief, including permanent injunctive relief in relation to certain intellectual property. Mr Phillips was unrepresented and remained so for some time.

[3] Interim relief was granted in October 2016 by consent and the substantive application set down for hearing in February 2017. That hearing was adjourned part- heard. One of the reasons for the adjournment was to enable Mr Phillips to obtain legal advice (he previously understood that the terms of the interim injunction precluded him from doing so). Mr Witten-Hannah appeared for Mr Phillips on 15 February 2017 to deal with the issue of adjournment. At that stage, it was contemplated that Mr Phillips would apply for legal aid.

[4] The matter was called in the Duty List on 15 June 2017 to monitor progress and Mr Phillips was represented by Mr Webb on that day. Mr Webb advised that a legal aid application was being pursued.

[5] The matter came before me on 31 July 2017 and Mr Webb again appeared for Mr Phillips. Legal aid had not yet been resolved. Given the delays, I directed that a

¹ Ngati Tama Custodian Trustee Ltd v Phillips [2018] NZHC 304.

fixture be allocated in February 2018 which was to proceed regardless of whether Mr Phillips secured legal aid.

[6] At the hearing on 7 February 2018 Mr Phillips was represented by Ms Fuiava of the firm Denham Bramwell. Notwithstanding that fact, Mr Phillips requested to be permitted to address some aspects of the argument himself, which I allowed.

[7] Mr Phillips has filed two sets of bound submissions in relation to costs. These were inexcusably prolix. Excluding appendices, one ran to 66 pages and the other to 50 pages. For the most part, they failed to address the very limited issues arising.

[8] To the extent that Mr Phillips was unrepresented, he is not entitled to costs.² To the extent that he was legally aided he is not precluded from seeking costs in relation to that period.³ Mr Phillips has advised in his memorandum that he is required to repay the legal aid support he received. In Denham Bramwell’s email of 14 March 2018, Ms Fuiava advised that the firm had invoiced the Legal Services Agency
$12,540.42. In these circumstances, I do not see why Mr Phillips ought not have costs on a 2B basis, though taking into account the amount that has been charged to the Legal Aid Services.

[9] In his further memorandum of 21 March 2018, Mr Phillips provided an extensive calculation of costs on a 2B basis. Many of the items claimed relate to times when he was unrepresented and for which costs are not recoverable. I consider that costs should only be allowed for the appearances (either by telephone or in person) of counsel on behalf of Mr Phillips. These were:

(a) Mr Witten-Hannah’s appearance on 15 February 2017 to seek adjournment. I consider that .4 of a day would be appropriate.

(b) Mr Webb’s appearance in the Duty List on 15 June 2017 – .2 of a day.

² Re Collier (a bankrupt) [1996] 2 NZLR 438.

³ See e.g. Jellie [2005] NZHC 138; Dockerty v Qa-t-a-Serqet Tehuti-Maat Nefer-net Hetp Ba Amun

[2018] NZHC 141.

(c) Mr Webb’s appearance at a conference with me on 31 July 2017 – .3 of a day.

(d) Ms Fuiava’s preparation and appearance at the February 2018 hearing. Preparation would attract 3 days and the appearance .5 of a day.

[10] My calculation of scale costs on this basis is $9,812. Mr Phillips is also allowed to recover any filing fees incurred.

[11] Ngati Tama has sought a reduction in any costs awarded by 75 per cent to reflect the fact that Mr Phillips first raised the issue of legal aid at the summary judgment hearing on 2 February 2017 and that the defence, as ultimately presented, did not appear significantly advanced by the fact that he was represented, that the defendant had raised issues about the pleadings at the 2017 hearing (which led in part to the adjournment) that ultimately had no merit and that the plaintiff was put to additional costs by having to appear at two separate hearings.

[12] There is some merit in Ngati Tama’s complaints. Mr Phillips contributed significantly to the overall cost and length of this proceeding. He should have sought proper legal advice in a timely way; his misunderstanding of the terms of Muir J’s interim order does not excuse his failure to check that it had the very unlikely effect he believed. His prolix documentation had added to the time at every turn. On the other hand, one of the reasons for adjourning the first hearing was that the most recent pleadings were not to hand, which was the plaintiff’s responsibility. To reflect the additional cost that the plaintiffs have been put to, I reduce the scale costs by 20 per cent.








P Courtney J