Auto Net v Tyler - [2021] NZHC 886

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2019-419-000327

[2021] NZHC 886

BETWEEN
AUTO NET

Plaintiff

AND

MICHAEL STEVEN TYLER

Defendant

CIV-2020-419-000142

BETWEEN

ROBERT DEVON STONE
Plaintiff

AND

MICHAEL STEVEN TYLER

First Defendant

AND

AUTO NET

Second Defendant

Hearing: On the papers filed 7 and 8 April 2021

Counsel:

S D Campbell and J R Halligan for Plaintiff T M Braun for Defendant

Judgment:

23 April 2021

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 23 April 2021 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

AUTO NET v TYLER [2021] NZHC 886 [23 April 2021]

Auto Net’s claim for costs

[1] In my judgment dated 17 March 2021, I granted Auto Net’s interlocutory application for leave to appeal against the decision of Associate Judge Smith declining Auto Net’s application for summary judgment against Mr Tyler.1

[2] Mr Tyler opposed the application for leave to appeal and my judgment followed a defended hearing.

[3] In my judgment, I reserved the question of costs and directed counsel to confer and attempt to reach agreement on costs. If agreement could not be reached they were to file memoranda.2 They did not agree and memoranda have been filed.

[4] Auto Net is seeking costs on the application. Mr Tyler opposes Auto Net’s claim for costs.

The principles and the issues

[5] The principles relevant to costs are well settled. All matters of costs are discretionary. The discretion must be exercised on a principled basis. Generally, the party who has lost will be ordered to pay the costs of the party that has won.3 The loser pays costs unless there are exceptional reasons to the contrary.4 The determination of costs, so far as possible, should be both predictable and expeditious.5 Costs on an opposed interlocutory application should, unless there are special reasons to the contrary, be fixed when the application is determined.6

[6] Auto Net says it was the successful party and therefore entitled to costs. It seeks costs calculated on a 2B basis (along with disbursements) as the application was of average complexity. I agree 2B costs are appropriate in this case.

1      Auto Net v Tyler [2021] NZHC 542.
2 At [47].
3      High Court Rules 2016, r 14.2(1)(a).
4      Shirley v Wairarapa District Health Board [2006] NZSC 63, [2006] 3 NZLR 523 at [19].
5      High Court Rules, r 14.2(1)(g).
6      Rule 14.8(1).

[7] Auto Net’s calculation of costs and disbursements sought is set out in the table that is attached to this judgment.

[8] Mr Tyler accepts Auto Net was successful. He agrees to Auto Net’s calculation of costs and disbursements for the steps identified. He does not, however, accept his liability for those costs and disbursements. The arguments he advances are as follows:

(a)costs should be reserved until the conclusion of the appeal;

(b)if costs are to be fixed now he should only be liable for costs…

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.

Continue reading Auto Net v Tyler

Details

AGLC: Auto Net v Tyler [2021] NZHC 886
Case: [2021] NZHC 886
Decision Date: 23 April 2021

CaseChat Overview and Summary

In the High Court of New Zealand, Associate Judge Paulsen heard a case involving Auto Net and Michael Steven Tyler, where Auto Net sought costs following an interlocutory application for leave to appeal a summary judgment decision. The matter was defended by Tyler, and the issue of costs arose after the parties were unable to agree on the costs incurred.

The court was required to decide whether costs should be awarded to the successful party, Auto Net, and if so, the appropriate basis for those costs. Auto Net sought costs on a 2B basis, which it argued was appropriate for an application of average complexity. Tyler opposed the claim, arguing that costs should be reserved until the conclusion of the appeal and that he should not be liable for certain costs, such as the preparation of the bundle of documents and travel expenses for counsel from Christchurch.

Associate Judge Paulsen found that costs should not be reserved until the conclusion of the appeal, as the rules and previous case law indicated that costs on opposed interlocutory applications should be fixed when the application is determined. The court also found that the argument regarding costs for steps that would have been necessary regardless of Tyler's opposition was not valid, as the same could be said for any interlocutory application. The court further held that the preparation of the bundle of documents and the travel expenses for counsel were reasonable and should be included in the costs. As a result, Auto Net was awarded costs on a 2B basis, along with disbursements, totaling $9,082 in costs and $1,116.78 in disbursements.

Orders