Arthur v Stanhope Workshop Limited

[2014] NZHC 3046

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2014-404-000500 [2014] NZHC 3046

IN THE MATTER

of the enforcement of a right of way

easement

BETWEEN

BRUCE ARTHUR Plaintiff

AND

STANHOPE WORKSHOP LIMITED First Defendant

MARMOTEC LIMITED Second Defendant

KEN WILLIAMS Third Defendant

FORM (AK) LIMITED Fourth Defendant

On the papers
Counsel:	J Foster for Plaintiff R S Pidgeon for First-Third Defendants
Judgment:	2 December 2014

JUDGMENT OF ANDREWS J [Costs: amended pursuant to r 11.10]

This judgment is delivered by me on 2 December 2014 at 3pm pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

ARTHUR v STANHOPE WORKSHOP LTD & ORS [2014] NZHC 3046 [2 December 2014]

[1]      The parties have agreed on the terms of a draft order to be sealed in this proceeding, disposing of the issues between them.   I approve of the terms of the order, as presented.

[2]      The parties have not agreed as to costs payable by the first, second, and third defendants to the plaintiff.   Counsel have submitted memoranda setting out their respective submissions.

[3]      For the plaintiff, Ms Foster submitted that an order should be made for 2B costs of $18,407.50, together with disbursements.  For the defendants, Mr Pidgeon submitted  that  the  plaintiff’s  maximum  entitlement  is  $13,613.50,  and  that  a reduction should be made from that sum to reflect offers to settle costs, the plaintiff’s “disentitling conduct”, and the need for the parties to “work and coalesce together”.1

[4]      It is not clear how Mr Pidgeon reached the figure of $13,613.50.  However, it is  apparent  that  four  matters  are  in  dispute:    the  allowance  for  preparing  the statement of claim, the allowance for case management memoranda, the allowance for appearance at the hearing, and whether costs should be reduced.   In her reply memorandum,  Ms  Foster  submitted  that  Mr  Pidgeon’s  memorandum  should  be treated as an application for an order for reduced costs, under r 14.7.

Statement of claim

[5]      The plaintiff claims for three days.  The defendants submit that only one day should be allowed, because the statement of claim was “based very squarely” on the statement of claim of the first defendant (Stanhope) in proceedings brought earlier against the plaintiff (Mr Arthur) and the Auckland Council.2

[6]      I accept that the plaintiff’s claim is in some respects a mirror of the first defendant’s earlier claim.  However, every statement of claim must be approached fresh, and I do not accept that the allowance should be reduced to one day.  I allow

costs for two days.

1      Mr  Pidgeon’s  memorandum  specifics  “$13,6131.50”.    It  is  assumed  that  $13,613.50  was

intended.

2      Stanhope Workshop Limited v Bruce Arthur & Auckland Council HC Auckland CIV-2013-404-

3234.

Memoranda

[7]      Ms Foster claimed for two memoranda, dated 19 March 2014 and 12 June

2014.   Mr Pidgeon gave no reason for submitting that only one date should be allowed for memoranda.  I allow costs for two memoranda.

Hearing time

[8]      Ms Foster claimed for three-quarters of a day.  Mr Pidgeon submitted that the hearing occupied half a day.  The Court registry has advised me that the hearing was recorded as occupying half a day.  I allow costs for half a day.

Scale costs

[9]      With the adjustments set out above, the plaintiff’s claim for 2B costs is

calculated at $13,930.

Should there be a further reduction?

[10]     Mr Pidgeon contrasted the order sought by the plaintiff in this proceeding with  the  order  made  by  Wylie J  in  the  earlier  proceeding  brought  by  the  first defendant  (Stanhope)  that  Mr  Arthur  pay  Stanhope  and  the  Auckland  Council

$7,164, of which half was to be paid to Stanhope and the other half to the Council.3

There are, however, significant differences between the two proceedings.

[11]     In the earlier proceeding, Mr Arthur agreed, prior to the first mention of the proceeding in Court, to give an undertaking that would resolve the proceeding.  The proceeding was unopposed, and the only appearance required was a brief appearance for mention in a duty judge list.  Stanhope’s order was therefore for preparing the statement of claim (3 days), preparing one memorandum (0.4 days) and appearance at a callover (0.2 days).  His Honour’s order was for each of those steps.

[12]     The present proceeding was, by contrast, opposed.  The defendants did not accept that they did not have the right to park on the right of way, notwithstanding

that they had asserted, in the earlier proceeding, that Mr Arthur did not have the right

3      At [18]–[19].

to park on the right of way.  The defendants appear to have maintained their stance until the Court gave a clear indication that users of a right of way could not park on the right of way, other than for brief periods for the purposes of loading and unloading.

[13]     Both sides were required to take more steps, and to prepare for an appearance at a defended hearing.  Inevitably, the costs order will be greater.

[14]     Mr Pidgeon also referred to offers made as to costs on the day of the hearing. I accept Ms Foster’s submission that under r 14.7(f)(v), an offer of settlement must related to the substantive proceeding, not costs.  Even if that were not so, the order for costs in favour of the plaintiff in this proceeding exceeds the offer made by the defendants.

[15]     I am not persuaded that there has been any conduct by Mr Arthur that would disentitle him to an order for costs according to scale.   The “honours” as to the conduct of the parties in this proceeding would appear to be evenly spread.

[16]     The first, second and third defendants are ordered, jointly and severally, to pay costs to the plaintiff in the sum of $13,930, together with disbursements as fixed

by the Registrar.

Andrews  J