Cairns v Gilliam

[2015] NZHC 673

IN THE HIGH COURTOF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-002566 [2015] NZHC 673

BETWEEN

NIALL CHARLES EDGAR CAIRNS

Plaintiff

AND

SANDRA LORRAINE GILLIAM Defendant

Hearing:	(On the papers)
Counsel:	Lady Deborah Chambers QC for Plaintiff G Bogiatto for Defendant
Judgment:	8 April 2015

COSTS JUDGMENT OF VENNING J

This judgment was delivered by me on 8 April 2015 at 4.45 pm, pursuant to Rule 11.5 of the High

Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Dyer Whitechurch, Auckland

G Bogiatto, Auckland

Copy to:            Lady Deborah Chambers QC, Auckland

CAIRNS v GILLIAM [2015] NZHC 673 [8 April 2015]

[1]      The plaintiff has discontinued the application for summary judgment.   The defendant seeks costs calculated on a 2B basis of $8,132 together with disbursements of $110.

[2]      The plaintiff opposes the application for costs.   The plaintiff submits costs should lie where they fall, given the nature of the issue between the parties or, in the alternative, at most costs should be limited to the opposition to the application for summary judgment.   It is also submitted that any costs award should be set-off against the costs award in favour of the plaintiff in related proceedings [2014] NZHC

3009.

[3]      The plaintiff submits the only reason the application for summary judgment was discontinued is because the property, the subject of a settlement agreement, was sold to the defendant.  The plaintiff believes he would have been successful in the application for summary judgment if the matter had not been compromised in that way.

[4]      Whatever the plaintiff’s belief the substantive merits of the application were not determined.  In the circumstances the defendant is prima facie entitled to costs on the discontinuance.

[5]     I accept, however, that the defendant is not entitled to costs for the commencement  of the  defence  as  no  defence  was  filed.   The appropriate costs recoverable by the defendant in relation to the summary judgment application are as follows:

(a)       opposition to the interlocutory application (including affidavits) –  0.6

– $1,194;

(b)       appearance at a mentions callover – 0.2  – $398;

(c)       50  per  cent  of  the  preparation  of  written  submissions      –  .75  –

$1,492.50 (while full written submissions were not due at the time the discontinuance was filed, I accept some allowance should be granted

for preparation of the written submissions.  The discontinuance was only filed on 29 January 2015.  The fixture was scheduled for 10

February 2015).

[6]       I do not allow the application for set-off.  The costs awarded in [2014] NZHC

3009 although in related proceedings, involved a costs award against a different party.

Result

[7]       The plaintiff is to pay the defendant costs in the sum of $3,084.50, together with disbursements of $110.

Venning J