Action Fencing Limited v Ark Contractors Limited

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.

CaseChat Overview and Summary

Action Fencing Limited, HPL Distribution Limited, and Malcom James Daisley brought a claim against Ark Contractors Limited, Paul Gerrard Keller and Karen Elizabeth Keller, and TWTrustees 2008 Limited. The plaintiffs sought damages and other relief in relation to the construction and installation of fencing panels. The matter was heard and determined on the papers. The primary legal issue before the court was whether the plaintiffs were entitled to costs in the sum of $5,350, given their success in the proceedings. The defendants opposed the plaintiffs’ application for costs, arguing that the plaintiffs' submissions were materially inaccurate and that the plaintiffs' counsel had misled the court.

The court acknowledged that the general rule is that costs follow the event, meaning that the unsuccessful party in litigation usually pays the costs of the successful party. However, the court also noted that there are circumstances in which the presumption of costs following the event may be displaced or modified. In this case, the court found that while the plaintiffs had been successful, there were reasons to reduce the amount of costs they were awarded. Specifically, the court was critical of the plaintiffs' submissions, which inaccurately represented that the fencing panels were hung by their own weight, when in fact they were concreted into the ground. The court found that this inaccuracy had significance in the context of the case, as one of the issues was whether the fences were a chattel or a fixture. The court further noted that the inaccurate submissions had come from counsel appearing at the Bar.

Ultimately, the court determined that while the inaccurate submissions were not determinative of the outcome of the case, they were nonetheless antithetical to the curial process. The court therefore reduced the amount of costs payable by the defendants by 50%. The court ordered the defendants to pay the plaintiffs the sum of $2,675 in costs, reflecting the reduced amount.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established