Asphalt Supply Company Limited v Cole John Limited

[2021] NZHC 1567

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV 2020-419-346

[2021] NZHC 1567

UNDER THE

District Courts Act 2016

BETWEEN

ASPHALT SUPPLY COMPANY LIMITED

Appellant

AND

COLE JOHN LIMITED

Respondent

Hearing:

On the papers

Counsel:

A M Swan for the Appellant

E Learmonth for the Respondent

Judgment:

29 June 2021

COSTS JUDGMENT OF CAMPBELL J

This judgment was delivered by me on 29 June 2021 at 11:00 am pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

ASPHALT SUPPLY COMPANY LIMITED v COLE JOHN LIMITED [2021] NZHC 1567 [29 June 2021]

[1]                 In my judgment dated 31 May 2021, I allowed the appellant’s appeal against a judgment of Judge D M Wilson QC. The Judge had awarded the respondent damages of $130,129.65. I quashed the Judge’s award of damages, and substituted the lower award of $50,089.65.

[2]                 In my judgment I expressed the provisional view that costs on the appeal should lie where they fall. I said that if either party nonetheless sought costs, memoranda could be filed.

[3]The appellant has not sought costs. It is content for costs to lie where they fall.

[4]                 The respondent has sought costs. It seeks scale costs on a 2B basis, without any reduction. Ms Learmonth, for the respondent, submits the respondent did not fail with respect to the appeal. She says the appellant attempted to relitigate the proceeding by appealing on ten grounds, that the appellant was successful on only one ground, and that the respondent was successful on the remainder of the grounds.

[5]                 Ms Learmonth may be right that the respondent “did not fail”. But in order to be entitled to costs, the respondent must have succeeded on the appeal. Absence of failure is not the same as success.

[6]                 In my view, the respondent cannot be characterised as having succeeded, overall, on the appeal. My judgment reduced the award of damages by about two thirds. On any view of things, that was a success for the appellant. The respondent’s success on most of the issues that were raised on the appeal cannot convert a two- thirds reduction in the award of damages into overall success.

[7]                 The respondent’s success on those issues is properly and sufficiently taken into account in one of two ways, both of which lead to the same result:

(a)It could be said the appellant succeeded overall, given the reduction in the award of damages by about two thirds. As the party who succeeded overall, the appellant (and only the appellant) would normally be entitled to costs. But, given that the appellant failed on several issues

that were raised in the appeal, and those issues took a significant amount of preparation and hearing time, under r 14.7(d) it would be appropriate to refuse to make an order for costs in the appellant’s favour.

(b)It could be said, given the significant reduction in the damages award, coupled with the respondent’s success on most of the issues raised on the appeal, that the parties enjoyed success in equal measure. On that view, it would be appropriate for costs to lie where they fall.

[8]                 However, as I have said, there is no basis of characterising the respondent as the successful party on the appeal.

[9]For these reasons, I decline to make any order for costs on the appeal.

Campbell J