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COOPER V VAN HEEREN HC AK CIV-2004-404-2545 [2006] NZHC 746 (30 June 2006)

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
                                                                  CIV-2004-404-2545



                 BETWEEN                     BRYAN JOHN COOPER
                                             Plaintiff

      
          AND                         ALEXANDER PIETER VAN HEEREN
                                             Defendant


Judgment:
       30 June 2006



                         COSTS JUDGMENT OF HARRISON J



                  In accordance with R540(4) I direct
that the Registrar
                      endorse this judgment with the delivery time of
                                1.30 p.m.
on 30 June 2006




_________________________________________________________________________________

SOLICITORS
Carter & Partners
(Auckland) for Plaintiff
Jones Fee (Auckland) for Defendant


COOPER V VAN HEEREN HC AK CIV-2004-404-2545 30 June 2006

[1]    On
26 October 2005 I delivered a reserved judgment, striking out this
proceeding (at [53]) and directing that costs must follow the
event. I said (at [54]):

       I order Mr Cooper to pay Mr van Heeren's costs of and incidental to this
       application, to
be fixed according to category 2B. I certify for two counsel.

[2]    Judgment was sealed on 16 November 2005. Costs were then fixed
of $8120
"of and incidental to the strike out application" according to category 2B for two
counsel. On 18 November 2005 Ms Cecily
Brick, counsel for Mr van Heeren, filed
an application relating to costs. She accepted that costs on his application to strike
out
were properly fixed at $8120. However, she noted that my judgment did not deal
with disbursements which she sought in a figure of
$3125. More importantly,
Ms Brick applied for costs relating to other steps in the proceeding, to be calculated
according to categories
3B and 3C, of $37,840.


[3]    Unfortunately the registry did not draw Ms Brick's memorandum to my
attention until 7 June 2006.
I then issued a minute, recording as follows:

       [3]      Ms Brick is correct that, when delivering judgment on 26 October

      2005, I ordered Mr Cooper to pay Mr van Heeren's costs of and incidental to
       the application to strike out to be fixed
according to category 2B. I did not,
       however, order Mr Cooper to pay Mr van Heeren's costs in other steps of the
       proceeding
or for disbursements. Subject to receipt of submissions to the
       contrary from Mr O'Callahan, my provisional view is that Mr
van Heeren is
       entitled to costs and disbursements on those steps following his success on
       26 October 2005.

      
[4]     Ms Brick also refers to counsels' agreement on 22 September 2004
       that costs should be based on category 3. I am surprised
at this agreement
       because in my view the proceeding was not of a particularly complex nature.
       However, the parties
are bound by it. Costs should be fixed according to
       category 3.

       [5]     Provisionally I agree with Ms Brick that band
C should apply to
       discovery and inspection, and that Mr van Heeren is entitled to
       disbursements for Mr Christopher
Hodson QC's travel and accommodation
       costs.

       [6]     I do not know whether Mr Cooper accepts or opposes Mr van
   
   Heeren's application. I direct Mr O'Callahan to file and serve a
       memorandum by 4 p.m. on 23 June 2006; in the event that
Mr Cooper
       opposes, Mr O'Callahan is to set out succinctly his grounds in opposition. I
       will then determine Mr van Heeren's
application.

[4]    Mr Brent O'Callahan, counsel for Mr Cooper, has since filed a memorandum
in opposition. In summary, he submits
that my judgment delivered on 26 October
2005 was a final order which has been sealed; that it had the effect of dismissing the
proceeding
and determining costs; that where questions of costs are not reserved or
fixed in a proceeding, and the order has been drawn up and
perfected, the Court has
no power to recall the judgment to vary it by adding a new determination as to costs
(Thomson v Thomson  (1992) 6 PRNZ 591); that because the judgment was silent on
costs other than the application to strike out, those costs were neither fixed nor
reserved;
and that the Court is now functus officio and has no jurisdiction to make
the costs orders sought by Mr van Heeren without recalling
the judgment, for which
no grounds have been advanced.


[5]    I regret to say that I cannot understand Mr O'Callahan's submission.
It is
common ground that I fixed costs on the application to strike out when delivering
judgment on 26 October 2005. I did not consider
or determine Mr van Heeren's
application for disbursements or his application for costs in the proceeding other than
on the application
to strike out. It is unnecessary to recall the judgment or take any
other steps of that nature. I have the power to decide an application
which is not the
subject of a previous judicial determination.


[6]    The decision in Thomson's case is of no assistance. Greig
J allowed an
appeal against a decision in the Family Court granting costs against a legally aided
party pursuant to a decision to
recall a judgment. The Judge noted (at 594) that the
question was whether the Family Court had jurisdiction to raise and pronounce
on
the question of costs, after the substantive order (dealing with custody of a child)
was made. As the Judge noted (at 594):


      Any question of costs relates to the costs in the proceedings. What was
       sought here was not party and party costs, Court
fees, or witnesses'
       expenses, or even disbursements necessarily incurred in the process of
       the proceedings, but were
expenses incurred elsewhere and, indeed, in other
       proceedings in another jurisdiction which arose because of the deliberate
       breach of the Court's order by the appellant. They were not, in ordinary
       parlance, incidental to the New Zealand custody
proceedings. They were
       incidental to and a consequence of the conduct of the appellant, wrong and
       contemptuous as it
was, but it added nothing by way of expense or otherwise
       to the proceedings in New Zealand jurisdiction.

       [Emphasis
added]

Greig J allowed the appeal because he was satisfied the order made in the Family
Court was not reasonable.


[7]    This
case is very different. The law is settled that this Court has jurisdiction
to make an order supplemental to its original judgment
provided it does not affect its
legal validity (Dymocks Franchise Systems (NSW) Pty Ltd v Todd (No 2) [2005] 1
NZLR 145 (PC) at paras
[13]-[17]). I have neither considered nor adjudicated upon
Mr van Heeren's application for disbursements on the strike out application
or for
costs in the proceeding as a whole excluding that application.           They remain
outstanding for resolution and I have
the power to determine them.           I dismiss
Mr Cooper's jurisdiction objection to Mr van Heeren's application.


[8]    The
only other ground referred to by Mr O'Callahan was that I am not bound
by the parties' earlier agreement that this was a category
3 proceeding. That is true,
but Mr O'Callahan cannot now argue that it would be unreasonable to fix costs on an
agreed basis. The
parties must honour their agreement.


[9]    Accordingly, I enter judgment for Mr van Heeren against Mr Cooper for,
first, disbursements
on his application to strike out of $3125.86 and, second, costs
relating to other steps in this proceeding of $37,840.




     
                                ______________________________________
                                      Rhys Harrison J