Architecture & Project Management Limited v Windowmakers Limited - [2015] NZHC 2268

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-003023 [2015] NZHC 2268

BETWEEN
ARCHITECTURE & PROJECT

MANAGEMENT LIMITED Plaintiff

AND

WINDOWMAKERS LIMITED First Defendant

MARTIN ERIC BAMFORD Second Defendant

PLATINUM PACIFIC HOMES LIMITED Third Defendant

Hearing: 8 June 2015

Appearances:

A Maclean for Plaintiff
K Sheehan for First Defendant
J Armstrong for Second and Third Defendants

Judgment:

18 September 2015

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 18 September 2015 at 4.00 pm
pursuant to r 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date………………………

ARCHITECTURE & PROJECT MANAGEMENT LTD v WINDOWMAKERS LTD [2015] NZHC 2268 [18
September 2015]

Introduction

[1] The plaintiff, Architecture & Project Management Ltd (APM) filed a notice of discontinuance on 4 November 2014. The defendants obtained an order for costs against APM’s director, Terence Brown, who was not a party to the proceeding. Mr Brown has applied out of time for leave to review Associate Judge Christiansen’s decision.1

[2] The defendants oppose leave being granted to bring the application out of time and the application for review itself on the ground that the Associate Judge’s decision was not made in chambers and therefore is not amenable to review; they maintain that the correct course is an appeal to the Court of Appeal.

[3] The following issues arise:

(a) Is the Associate Judge’s decision subject to review or should

Mr Brown have applied for leave to appeal to the Court of Appeal? (b) Should Mr Brown have leave to bring the application for review?

(c) Did the Associate Judge err in making the costs order against

Mr Brown?

[4] In the event that he fails on these issues Mr Brown seeks an order staying enforcement of the costs order.

Review or appeal?

The application for costs against Mr Brown

[5] In a minute dated 18 November 2014 the Associate Judge referred to the defendants’ intention to apply for costs against Mr Brown. He directed the defendants to serve their “costs applications and associated material” on Mr Brown and his solicitor, together with a copy of the minute. Mr Brown was directed that if he wished to respond to the application he should do so within 15 working days of
receipt of the documents. The Associate Judge signalled his intention to determine

1 Architecture & Project Management Ltd (in liquidation) v Windowmakers Ltd HC Auckland
CIV-2013-404-3023, 18 December 2014.

the application on the papers but allowed for the possibility of a hearing if Mr Brown wished.

[6] The defendants immediately filed a memorandum identifying the grounds on which they sought to have costs and disbursements on the discontinuance met by Mr Brown. Mr Brown filed a memorandum in opposition. Mr Brown did not request a hearing. The defendants replied. The Associate Judge determined the application on the papers and delivered his decision in writing on 18 December
2014. He ordered Mr Brown to pay costs and disbursements totalling $27,521.

Was the Associate Judge’s decision made in court or chambers?

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] NZHC 2268
Decision Date: 18 September 2015

CaseChat Overview and Summary

In the High Court of New Zealand, the plaintiff, Architecture & Project Management Limited (APM), filed a notice of discontinuance in a proceeding against Windowmakers Limited, Martin Eric Bamford, and Platinum Pacific Homes Limited. The defendants sought an order for costs against Terence Brown, the director of APM, who was not a party to the proceeding. Mr Brown applied for leave to review the Associate Judge's decision to award costs against him. The defendants opposed the application for leave and argued that the correct remedy was an appeal to the Court of Appeal. The key issues for the court to decide were whether the Associate Judge's decision was subject to review or should Mr Brown have appealed to the Court of Appeal, whether Mr Brown should have leave to bring the application for review, and whether the Associate Judge erred in making the costs order against Mr Brown. The court concluded that the Associate Judge's decision was subject to review and granted Mr Brown leave to bring the application for review out of time. The court found that the Associate Judge erred in making the costs order against Mr Brown and set aside the order. The court did not need to deal with the application for a stay of the order as the order for costs against Mr Brown was set aside.

Orders