Aldridge v Coates

[2020] NZHC 1515

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2020-488-25

[2020] NZHC 1515

UNDER

the Arbitration Act 1996

BETWEEN

DEBBIE TARA ALDRIDGE and DARRYL

DENNIS ALDRIDGE trading as DALRIDGE FARM TRUST

Applicant

AND

PAMELA ANN COATES

Respondent

Judgment:

(On the papers)

30 June 2020

COSTS JUDGMENT OF BREWER J

This judgment was delivered by me on 30 June 2020 at 4:30 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Mark Copeland (Whakarewarewa) for Applicant Thomson O’Neil & Co (Eltham) for Respondent

ALDRIDGE v COATES [2020] NZHC 1515 [30 June 2020]

Introduction

[1]This is a costs judgment.

[2]        The parties are immersed in a dispute regarding a lease of farmland. They seek to resolve it by arbitration. On 1 April 2020, the respondent filed an originating application with the High Court for an order for the removal of the appointed arbitrator. The parties appeared for first call on 10 June 2020. I observed that there were two principal difficulties with the application: there was no time for the application to be heard before the arbitration, scheduled for 25 and 26 June 2020; and the grounds of the application on their face showed almost no prospects of success. I invited counsel to take further instructions as to whether the application was to be withdrawn.

[3]        Counsel for the applicant filed a notice of discontinuance on 16 June 2020. Counsel for the respondent filed a memorandum seeking costs later that day. Counsel for the applicant filed a memorandum in response on 19 June 2020.

Costs

[4]        Costs are at the discretion of the Court.1 The starting point for this costs determination is r 15.23 of the High Court Rules 2016, which provides:

Unless the defendant otherwise agrees or the court otherwise orders, a plaintiff who discontinues a proceeding against a defendant must pay costs to the defendant of and incidental to the proceeding up to and including the discontinuance.

[5]Counsel for the respondent seeks scale 2B costs for the following:

One day’s preparation in relation to responding to the originating application.

0.4 day’s preparation for the first case management conference.

0.4 days for filing memorandum for the first case management conference.

0.2 days for appearing at the first call. (sum $4,780).

1      High Court Rules 2016, r 14.1.

[6]        Counsel for the respondent justifies the time allocations for the above steps on the ground that the appellant: was a poor communicator of important information; did not make a copy of the originating application available to the respondent in a usable format; and did not have a viable case.

[7]        Counsel for the applicant submits that the respondent has mischaracterised the applicant’s conduct. Further, that as the first call concerned procedural matters, any preparation for that appearance should not have risen to the level which would justify a 2B costs award. Counsel acknowledges as reasonable:

0.6 days at the 2B recovery rate for drafting a memorandum (and thereby preparing for the first call).

(sum $1,430).

[8]        I have again read the file. I agree with counsel for the applicant. All that happened in this case was that an originating application was filed and it went to first call.

Result

[9]I award costs in favour of the respondent in the sum of $1,430.

Brewer J