Body Corporate 368533 v Napier City Council

[2020] NZHC 227

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2012-441-126

[2020] NZHC 227

BETWEEN

BODY CORPORATE 368533

Plaintiff

AND

NAPIER CITY COUNCIL

First Defendant

AND

OTHER DEFENDANTS

Second – Thirty-Fifth Defendants

Hearing:	On the papers
Appearances:	G J Kohler QC and K A Lomas for Plaintiff/Respondent H M Rice and L J Fraser for First Defendant/Applicant
Judgment:	20 February 2020

JUDGMENT OF GRICE J

(Costs application on interlocutory application for adjournment of trial)

[1]                Napier City Council (the Council) was successful in an application for adjournment of the 10 week trial which was due to begin in the High Court on 11 May 2020.1

[2]                The trial was adjourned as there had been slippage in meeting the timetable. This was largely due to the plaintiff failing to file its briefs according to a timetable which had been in place since May 2019. There had been a number of warnings by the Associate Judge managing the file that given the tightness of the timetable it was critical that the dates in the timetable were met.

1      Body Corporate 368533 v Napier City Council [2019] NZHC 3270 at [58].

BODY CORPORATE 368533 v NAPIER CITY COUNCIL [2020] NZHC 227 [20 February 2020]

[3]                The Council made the application for adjournment on the basis that the plaintiff had not met the timetable dates which led to the Council being unable to get its expert evidence briefed and files in time to be ready for trial.

[4]                I found that the slippage caused by the plaintiff’s failures to file its briefs in a timely manner was such that it was not in the interests of justice to retain the trial dates and therefore granted the adjournment. I also noted that the Associate Judge on a number of occasions had made it clear that the timetable was a critical path. The delays in the filing of the plaintiff’s briefs were not limited to a matter of days but ate substantially into the defendants’ time schedule for preparation for the Christmas break. In those circumstances I considered the delay was such as to justify the adjournment.

[5]                The parties have been unable to agree upon costs. The Council applies for costs and says that the fundamental principle is that costs follow the event. In this case the Council has been successful in its application for an adjournment. It submits there are no exceptional reasons why it should not get costs. As the cause of the adjournment was entirely due to the timetable slippage by the plaintiff it says there is no reason for costs not to be awarded to the Council.

[6]                Ms Rice for the Council notes that while costs are generally awarded against the party seeking an adjournment whether the application is successful or not because it is an indulgence to the applicant that should not be the case here. The reason for the application here was the plaintiff's failure to meet the timetable dates.

[7]                I do not consider there is any reason why costs should not follow the event in this case. Although it is an application for adjournment, such an application was required because the plaintiff had not met the timetable which was as all counsel agree very tight.

[8]                This is not a case where an indulgence has been granted to an applicant for an adjournment. The adjournment was necessary in the interests of justice through no fault of the Council.

[9]                Accordingly I award costs on the application for adjournment in favour of the Council. There has been no dispute about the arithmetic or the level of claims calculated on a category B basis as set out in the applicants schedule 1 to the application for costs. The claims set out appear to be in line with what would be expected from an application of this nature. The hearing took a full day.

[10]            Accordingly costs are awarded to total of $8,843 in favour of Napier City Council together with reasonable disbursements.

Grice J

Solicitors:

Braun Bond & Lomas Ltd, Hamilton Rice Speir, Auckland