Allison v JJS Cars Limited

[2013] NZHC 2459

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-2513 [2013] NZHC 2459

BETWEEN  JENNIFER JANE ALLISON Plaintiff

ANDJJS CARS LIMITED Defendant

Hearing:                   (on papers) Appearances: J Foley for plaintiff

A Kashyap for defendant

Judgment:                25 September 2013

JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE [on Costs]

This judgment was delivered by me on

25.09.13 at 4 p.m., pursuant to

Rule 11.5  of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Counsel:

Foley & Hughes, Auckland

A Kashyap, Epsom, Auckland

ALLISON v JJS CARS LIMITED [2013] NZHC 2459 [25 September 2013]

[1]    The  plaintiff  brought  liquidation  proceedings  against  JJS  Cars  Limited  to recover amounts that she had paid for a motor vehicle.  The price had been satisfied by means of cash and a trade in vehicle.

[2]    The  plaintiff  asserted  that  the  car  that  she  acquired  was  defective.    The defendant motor vehicle dealer denied that and further raised the issue that the car that the plaintiff had traded in was defective.

[3]    The plaintiff sought an order placing the defendant into liquidation.  After it had received all but $1,000 of the amounts that it claimed, the plaintiff discontinued the proceeding.  This was done against a background that the parties had agreed that the $1,000 amount should be held pending the outcome of a decision of the Disputes Tribunal into who was right and who was wrong in the matter of the Consumer Guarantees Act cause of action which the  plaintiff claimed she had against the defendant.

[4]    This was a case where the plaintiff did not obtain the type of order that she said she was entitled to, being a liquidation order based upon the alleged insolvency of the defendant company.  She has made something of a victory in the arrangements collateral to the liquidation proceedings because there has been a partial refund and an agreement to refer the dispute over the unpaid balance to the Disputes Tribunal.

[5]    The parties did not dispute that r 15.23 of the High Court Rules applied to a liquidation proceeding.

[6]      The presumption is that unless the Court otherwise orders a plaintiff who discontinues must pay costs.  That is the prima facie position.  It is not possible for the Court to go into the merits of this case.   No rational judgment can be made whether or not the car that was supplied fell below the standard required by the Consumer Guarantees Act.

[7]      There  is  an  onus  on  the  plaintiff  to  satisfy  the  Court  that  the  usual presumption of costs in favour of the defendant should not apply.1    According to McGechan  on  Procedure  the  presumption  is  not  displaced  merely  because  the plaintiff acted reasonably in bringing and discontinuing the proceeding.  Those are relevant factors but more is needed to show that a costs award in the defendants favour would not be just or equitable.   The case of Vector Gas Limited v Todd Petroleum Mining Company Limited2 is cited in support.  I consider that is a correct statement of principle.  There is at least one authority where costs were awarded to a discontinuing plaintiff who had obtained the result that she wanted because of agreement and subsequently discontinued the proceeding.3

[8]      However  such  minor  amounts,  although  important  to  the  parties,  were involved in this proceeding that the decision to compromise on each side is just as explicable in terms of costs avoidance and may be explained on that basis rather than on the basis of any recognition of merit or compelling strength of either side’s case. Because there was a compromise both parties achieved a measure of success, it may be argued.

[9]      For  all  of  those  reasons  I  consider  that  the  presumption  has  not  been displaced and that the plaintiff ought to pay costs on a 2B basis together with

disbursements as fixed by the Registrar.

J P Doogue

Associate Judge

1 Paul v Raklander HC Auckland CIV 2009-404-3811, 20 June 2008.

2  Vector Gas Limited v Todd Petroleum Mining Company Limited HC Wellington CIV-2004-485-

1753, 7 December 2010 at [18].

3 Max v Auckland City Council HC Auckland CIV-2006-404-001, 9 June 2006.