Bushetts Transport Limited v Lowes HC Wellington CIV 2011-485-131

[2011] NZHC 1933

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2011-485-131

BETWEEN  BUSHETTS TRANSPORT LIMITED First Plaintiff

ANDEASTERN EQUITIES INVESTMENTS LIMITED

Second Plaintiff

ANDGRAHAM ROGER LOWES AND TONY IAN LOWES

First Defendants

ANDJANIFRIE FOOT Second Defendant

ANDRODERICK JOHN PARSONS Third Defendant

ANDCHB TRANSPORT LIMITED Fourth Defendant

Hearing:         13 June 2011

Counsel:         B Gustafson for Plaintiffs

K Sullivan for First Defendants
P R W Chisnall for Second Defendant
M E J Macfarlane for Third and Fourth Defendants

Judgment:      13 June 2011

JUDGMENT OF RONALD YOUNG J

[1]      There is a dispute between the plaintiff and non parties regarding costs of an

application for non party discovery.  Some brief background is necessary.

BUSHETTS TRANSPORT LIMITED V GRAHAM ROGER LOWES AND TONY IAN LOWES HC WN CIV

2011-485-131 13 June 2011

[2]      On 30 May 2011 the plaintiff and counterclaim defendant sought non party discovery  against   Roderick   John   Parsons   and   CHB Transport Limited.     The application was filed on 30 May 2011 with a return date of 13 June 2011.  I note that the application itself was dated 27 May 2011 but the interlocutory application could not have been served until 30 May at the earliest given that the Court allocated the return date of 13 June 2011 on 30 May 2011.  The application was accompanied by an affidavit by Mr Lowe.

[3]      Mr Parsons,  on  behalf  of  himself  and  CHB Transport  filed  on  10 June  a notice of opposition and affidavit in response.  This response was, therefore, seven clear working days after the filing of the interlocutory application (HCR 7.24).

[4]      Mr Parsons   and   CHB Transport   had   formally   been   third   and   fourth defendants in this litigation but had settled with the plaintiff.  Mr Parsons claimed that  part  of  the  arrangements  between  the  parties  was  that  he  would  forthwith produce  to  the  plaintiff  all  documents  relating  to  the  particular  relationship. Mr Parsons says that he did so.  Mr Parsons says that the request for discovery was well beyond what was required as part of the settlement agreement.  In his affidavit he says that he would be prepared to provide the material as long as the plaintiff paid the costs of doing so but initially the plaintiff was not prepared to do so.

[5]      The non parties say that as early as 27 May in correspondence they made it clear  that  they  would  provide  a  sworn  list  and  the  documents  would  be  made available for inspection but “only at the cost of the plaintiffs”.   They offered to provide discovery on that basis without the necessity for a Court order.

[6]      The notice of opposition filed by the non parties indicates that they were prepared to provide an appropriate list but that they sought costs on the application as well as the costs of processing the discovery.

[7]      When the matter came before me the parties had agreed that discovery orders could be made against the non parties. They agreed that the non parties were entitled to have $1,500 towards the cost of producing the material but the parties could not agree on whether or not the non parties were entitled to costs on the plaintiff’s application.

[8]      In my view the non parties are entitled to a modest contribution towards their costs.   It should not be on a 2B basis.   I accept in the circumstances they were required to respond to the plaintiffs’ application.  The non parties are, by the nature of their settlement, no longer parties to this proceeding and had been put to some expense in responding.  However, it is difficult to see it was necessary to file such an extensive  response  affidavit  in  the  circumstances.     Indeed  given  they  were consenting to the orders made and simply seeking costs I cannot see than anything more than a notice of opposition was required.

[9]      In those circumstances rather than allocate costs on a categorisation basis, I

allow the non parties total costs of $300 payable by the plaintiff.

Ronald Young J

Solicitors:

B Gustafson, Barrister, PO Box 1297, Shortland Street, Auckland, email:  [email protected]

K Sullivan, Barrister, PO Box 5817, Wellington, email:  [email protected]
P R W Chisnall, Barrister, PO Box 5817, Wellington, email:  [email protected]

M E J Macfarlane, Sainsbury Logan & Williams, PO Box 41, Napier, email:  [email protected]