Austin v Rentrezi 2 Limited - [2021] NZHC 1590

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA

KIRIKIRIROA ROHE

CIV-2019-419-000070

[2021] NZHC 1590

BETWEEN NORMAN CLIVE AUSTIN and MARGARET IRENE AUSTIN
Plaintiffs

AND

RENTREZI 2 LIMITED

First Defendant

PRAGMA DESIGNER HOMES LIMITED
Second Defendant

AHL RENTALS LIMITED

Third Defendant

Hearing: On the papers

Judgment:

30 June 2021

JUDGMENT OF WYLIE J

[Costs]

This judgment was delivered by Justice Wylie On 30 June 2021 at 3.00 pm
Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

Solicitors/counsel:
O’Sheas Barristers & Solicitors, Hamilton/V Whitfield, Cambridge Braun Bond & Lomas Ltd, Hamilton

AUSTIN v RENTREZI 2 LTD [2021] NZHC 1590 [30 June 2021]

Introduction

[1] I refer to my judgment of 10 May 2021.1 I dismissed the first, second and third causes of action, upheld the fourth and fifth causes of action and awarded $20,000 by way of general damages to the plaintiffs, Mr and Mrs Austin.

[2] I indicated my view that all parties had had a measure of success in the proceedings, and expressed the preliminary opinion that costs and disbursements should lie where they fall.

[3]Neither party has accepted that indication.

[4] The defendants, Rentrezi 2 Ltd (“Rentrezi”) and Pragma Designer Homes Ltd (“Pragma”), have sought costs either on a 2B basis in the sum of $67,274.50 and disbursements in the sum of $33,183.37, or increased costs. They argue that a Calderbank offer was made on 6 May 2020 in the sum of $15,000, which they assert was close to the value of the judgment obtained by Mr and Mrs Austin. They also say that the Austins advanced arguments that lacked merit and they seek an order for increased costs after the date of the Calderbank offer.

[5] The Austins have replied, denying any liability to Rentrezi and Pragma. They seek that their costs should be met in the sum of $40,217.40 together with disbursements of $5,368.98.

Analysis

[6] Costs are of course in the discretion of the Court under r 14.1 of the High Court Rules 2016. The principles governing the exercise of that discretion are however well established. The costs regime is of a regulatory character and it is important that its integrity is maintained. There is accordingly a strong implication that the Court should apply the costs regime set out in the High Court Rules in the absence of some reason to the contrary; any departure must be a considered and particularised exercise of the discretion.2

1 Austin v Rentrezi 2 Ltd [2021] NZHC 1027.
2 Glaister v Amalgamated Dairies Ltd [2004] 2 NZLR 606 (CA) at [21]-[24].

[7] A party who fails with respect to a proceeding is generally required to pay costs to the party who succeeds.3

[8]Here, there were five causes of action pleaded.

[9] In their first cause of action, Mr and Mrs Austin sought a declaration that the benefit of the right of way did not pass to the subdivided lots on which the new residential units built by Rentrezi…

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: [2021] NZHC 1590
Decision Date: 30 June 2021

CaseChat Overview and Summary

The case of Austin v Rentrezi 2 Limited involved the plaintiffs, Norman Clive Austin and Margaret Irene Austin, who sued Rentrezi 2 Limited, Pragma Designer Homes Limited, and AHL Rentals Limited. The plaintiffs sought a declaration regarding the right of way over a property, alleging trespass and nuisance by the defendants during the construction period. The High Court of New Zealand considered the merits of the case and ruled in favour of the plaintiffs on two of the five causes of action. The court awarded $20,000 in general damages to the plaintiffs. Following the initial judgment, the defendants sought costs, while the plaintiffs sought costs of their own. The court examined the costs under the High Court Rules and considered various factors, including the lack of success in some causes of action, the absence of evidence to support certain claims, and a prior offer made by the defendants. Ultimately, the court concluded that the circumstances justified not awarding costs to either party.

The legal issues before the court involved the determination of costs in light of the outcome of the case. The defendants argued for costs on a standard basis, citing a Calderbank offer and the lack of merit in some of the plaintiffs' arguments. The plaintiffs sought costs in their favour, citing their success in two causes of action. The court had to weigh these arguments and decide whether to award costs to either party, considering the principles governing costs and the specific circumstances of the case.

In its reasoning, the court noted that the costs regime in New Zealand follows a regulatory character, and any departure from the standard rules must be well justified. The court considered the lack of success in some causes of action by the plaintiffs, the absence of evidence to support some claims, and the Calderbank offer made by the defendants. The court concluded that these factors warranted refusing costs to both parties, despite the general principle that costs should follow the result of the hearing. The court thus determined that neither party was entitled to an award of costs and disbursements.

Orders