Chen v Carter

[2013] NZHC 1397

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-002046 [2013] NZHC 1397

UNDER  the Defamation Act 1992

IN THE MATTER OF       an interlocutory application under Rules

7.23 and 7.53 of the High Court Rules

BETWEEN  JOHN CHUNG CHING CHEN Plaintiff

ANDJOHN NORMAN CARTER First Defendant

ROGER BERNARD APPERLEY Second Defendant

DAVID LLOYD BURGESS Third Defendant

PETER FRANCIS Fourth Defendant

JOHN LEONARD MORRIS Fifth Defendant

SALLY LEONARD SYNNOTT Sixth Defendant

CROCKERS BODY CORPORATE MANAGEMENT LIMITED Seventh Defendant

ROCHELLE WILLIAMS Eighth Defendant

Judgment:                12 June 2013

JUDGMENT (ON THE PAPERS) AS TO COSTS OF COLLINS J

CHEN v CARTER [2013] NZHC 1397 [12 June 2013]

[1]      On 3 May 2013 I delivered my reasons for setting aside an earlier injunction that had been issued by Keane J.

[2]      In paragraph [55] of my judgment I said that the defendants were entitled to costs.   In expressing this conclusion I also recorded that I was inclined to award costs on a scale 2B basis and that if the parties were unable to reach agreement on costs they should file memoranda explaining their positions.

[3]      The defendants’ memorandum on costs was filed on 17 May 2013.   The plaintiff’s  memorandum  in  reply  was  filed  on  24  May  2013.     The  parties’ memoranda were referred to me on 7 June 2013.

[4]      The defendants seek either:

(1)an award of costs calculated on a scale 2B basis with a 100 per cent uplift;  or

(2)       indemnity costs.

[5]      The plaintiff opposes any increase in costs above a scale 2B calculation.

[6]      After careful reflection I have decided that the defendants are entitled to costs on a scale 2B basis without any uplift.

[7]      My reasons for reaching this conclusion can be distilled to the following five grounds:

(1)In relation to the claim for indemnity costs, I am satisfied that the plaintiff did not commence his proceeding:[1]

[1] Bradbury v Westpac Banking Corporation [2009] 3 NZLR 400 (CA) at [29].

(a)     for an unacceptable reason;  or

(b)     in wilful disregard of known facts or clearly established law;  or

(c)     knowing  that  his  proceeding  was  based  upon  unjustified allegations.

(2)I am also satisfied the plaintiff did not conduct himself in any way that justifies an increase in costs in the way described in r 14.6(3) of the High Court Rules.

(3)It will be apparent that I believe the plaintiff was wrong to have sought an injunction but I attribute his error to a lack of appreciation of the merits of the defendants’ grounds for opposing his application.   The plaintiff’s misguided approach to the application for an injunction was substantially due  to  his  “heat  of  the  moment”  reaction  to  what  he thought were defamatory comments made about him by the defendants.

(4)While I am concerned that an important matter was not disclosed to Keane J, I accept the assurances of counsel for the plaintiff that the omission was an inadvertent clerical error.

(5)I also  accept  the  suggestion  from  Mr  Miles  QC  that  the  case  was unlikely to proceed to trial was not a concession that engaged s 45 of the Defamation Act 1992.

[8]      In these circumstances, I order that the defendants are entitled to costs on a scale 2B basis in accordance with the calculations attached to the memoranda from

counsel for the defendants.

D B Collins J

Solicitors:

Minter Ellison Rudd Watts, Auckland for Plaintiff
DAC Beachcroft New Zealand Limited – Wellington Branch, Wellington for Defendants