Avers v NRG Realty Limited

[2018] NZHC 1271

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2017-470-000139 [2018] NZHC 1271

BETWEEN

LYNNAIRE AVERILL DEIDRE AVERS ERIC GREEN
First Plaintiff

AND

NRG REALTY LIMITED

Defendant

AND

LUMLEY GENERAL INSURANCE (N.Z.) LIMITED

Third Party

On the papers

Judgment: 31 May 2018

JUDGMENT OF ASSOCIATE JUDGE P J ANDREW ON COSTS

This judgment was delivered by me on 31 May 2018 at 4.30 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors/Counsel:

Hollister-Jones Lellman, Tauranga for Plaintiffs Holland Beckett, Tauranga for Defendant

LYNNAIRE AVERILL DEIDRE AVERS v NRG REALTY LIMITED [2018] NZHC 1271 [31 May 2018]

Introduction

[1]                 Following the filing of an amended statement of claim and the vacating of the defendant’s application to strike-out the proceedings, the defendant makes application for costs. It seeks wasted costs and increased costs (50 percent uplift on scale costs) for defaults by the plaintiff said to have caused the fixture to be adjourned. In the alternative, the defendant seeks costs pursuant to r 7.77(8), being costs occasioned by the original pleading.

[2]                 The plaintiffs oppose any award of costs. In the alternative, they contend that if costs are to be awarded under r 7.77(8), they should be awarded on a 2B basis as costs in the proceeding to be determined at the conclusion of the proceeding.

Decision

[3]                 The fate of the application to strike-out remains unclear. It has not yet been determined. Three of the causes of action that are the subject of the strike-out application are included in the amended statement of claim.

[4]                 I do not accept that there are special reasons in terms of r 14.8 to fix costs at this stage. They should be determined, subject to the Court’s overall discretion, once the application to strike-out has been determined. In the event that it is discontinued, it would seem unlikely that costs should be awarded.

[5]                 The defendant was given some notice that an amended pleading would likely be filed. It is regrettable that it was filed close to the time for the filing of the defendant’s submissions on the strike-out application. However, the filing date was well in advance of the allocated fixture date and it appears that better communication between the parties might have prevented unnecessary costs. On the evidence available to me, it appears that both parties should share some responsibility for that.

[6]                 As counsel for the plaintiff has pointed out, the cases where wasted costs have been awarded, involved either the filing of new evidence or amended pleadings on the eve of the hearing of the application.

[7]                 In all the circumstances, there are no special reasons justifying an award of costs at this stage. It is likewise premature to determine whether costs should be awarded pursuant to r 7.77(8).

Result

[8]I order that the defendant’s application for costs is dismissed.

Associate Judge P J Andrew