Action Fencing Limited v Ark Contractors Limited

[2018] NZHC 243

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-002176

[2018] NZHC 243

BETWEEN

ACTION FENCING LIMITED

First Plaintiff

HPL DISTRIBUTION LIMITED
Second Plaintiff

MALCOM JAMES DAISLEY
Third Plaintiff

AND

ARK CONTRACTORS LIMITED

First Defendant

PAUL GERRARD KELLER and KAREN ELIZABETH KELLER

Second Defendants

PAUL GERRARD KELLER, KAREN ELIZABETH KELLER and TW
TRUSTEES 2008 LIMITED

Third Defendants

Hearing	On the papers
Judgment:	26 February 2018

COSTS JUDGMENT OF DOWNS J

This judgment was delivered by me on Monday, 26 February 2018 at 1 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Tailored Legal Solutions Ltd, Dargaville. Henderson Reeves Lawyers, Whangarei.

ACTION FENCING LTD v ARK CONTRACTORS LTD [2018] NZHC 243 [26 February 2018]

[1]        On 19 December 2017, I dismissed a summary judgment application.1 The plaintiffs seek 2B costs given their success. The defendants resist costs.

[2]        There is nothing to displace the presumption costs follow the event.2 That said, there is reason to reduce the award:3

(a)The plaintiffs’ submissions—both written and oral—were materially inaccurate in representing fencing panels were hung by their own weight. In fact, they are concreted into the ground.4 The point had significance: one of the issues was whether the fences were a chattel or fixture.

(b)The submission was given from the Bar.

[3]        Had the submission been determinative, I would now decline costs. It was not. But, inaccurate submissions from the Bar are antithetical to curial process. I reduce by 50 percent the costs otherwise payable.

[4]The defendants must pay the plaintiffs $2,675.5

……………………………..

Downs J

1      Action Fencing Ltd v Ark Contractors Ltd [2017] NZHC 3248.

2      High Court Rules 2016, r 14.2(a).

3      High Court Rules, r 14.7(g).

4      See affidavit of Mr Paul Keller dated 25 January 2018.

5      The figure presupposes a quarter-day hearing; not a half-day.