A v Willis

[2019] NZHC 1851

ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES OR IDENTIFYING PARTICULARS OF PLAINTIFFS AND

FIRST DEFENDANTS

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2018-441-60

[2019] NZHC 1851

BETWEEN

A, B and C Plaintiffs

AND

D and E

First Defendants

LAWRENCE WILLIAM WILLIS and ALAN JAMES DAVIES

Second Defendants

Appearances:

M Phillipps for plaintiffs

M Wenley for first and second defendants

Judgment:

1 August 2019

COSTS JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

[On the papers]

[1]        In my judgment dated 31 May 2019 I dismissed the first defendants’ application for summary judgment but entered summary judgment in favour of the second defendants.

[2]        I reserved costs in the expectation that counsel would be able to resolve these. That expectation on my part has proved only partially justified. As between the second defendants and the plaintiffs, counsel are agreed that the second defendants, who will play no further part in this litigation, should have their costs on a 2B basis. However, counsel have been unable to agree on the position as between the plaintiffs and the first defendants.

A v D [2019] NZHC 1851 [1 August 2019]

[3]        Mr Wenley submits that costs as between these parties should be reserved pending disposal of the substantive proceeding. He relies on the conventional practice in unsuccessful summary judgment applications of reserving costs.

[4]        Mr Phillipps on the other hand submits that the plaintiffs should have their costs against the first defendants. He contends that whilst in form the first defendants’ application was for summary judgment, in effect it was an application to strike out the claim against them. As he says, no evidence was placed before the Court or relied on in support of the application, the core allegations made by the plaintiffs being accepted by the first defendants as being arguable and no attempt being made to rebut these. The essential question before the Court was whether, on the basis of the plaintiffs’ allegations, as a matter of law, they could succeed at trial. Mr Phillipps submits, on that basis, that the correct procedure was an application to strike out the claim against the first defendants by the plaintiffs.

[5]        Whilst accepting that in the generality of cases costs awards should not follow unsuccessful summary judgment applications (essentially for the policy reason referred to by Mr Phillipps, that summary judgment applications in appropriate cases are to be encouraged as they may bring litigation to a conclusion), I accept the argument advanced by him to the effect that the circumstances of this case do justify an award. This application was argued as if it were an application for an order striking out the plaintiffs’ claim against first defendants and an unsuccessful application to strike out a claim invariably results in a costs award.

[6]Accordingly:

(a)the second defendants will have their costs against the plaintiffs on a 2B basis. In relation to this, counsel are agreed the correct award is

$13,540 (inclusive of both costs and disbursements);

(b)the plaintiffs will have their costs against the first defendants on a 2B

basis, together with such disbursements as may be allowed by the Registrar.

Associate Judge Johnston

Solicitors:

Vicki Ammundsen Trust Law Ltd, Auckland for the plaintiffs Willis Legal, Napier for the first and second defendants