Clode v Oliphant

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-647

[2018] NZHC 1752

BETWEEN
BRENT DOUGLAS CLODE

Applicant

AND

DAVID JAMES OLIPHANT

First Respondent

AUBURN DEVELOPMENT LIMITED
Second Respondent

RAILSIDE INVESTMENT LIMITED

Third Respondent

Hearing: On the papers

Appearances:

Applicant in person

P J Bedogni for Respondent

Judgment:

16 July 2018

JUDGMENT NO 2 OF PALMER J

This judgment is delivered by me on at 4.00 pm pursuant to r 11.5 of the High Court Rules.

.....................................................
Registrar / Deputy Registrar

Solicitors:
Martelli McKegg, Auckland

Copy to:
Applicant

CLODE v OLIPHANT NO 2 [2018] NZHC 1752 [17 July 2018]

[1] In a judgment dated 15 June 2018, I declined Mr Clode’s application for a mandatory interim injunction against Mr Oliphant and two other respondents.1 In submissions, the respondents sought costs but the judgment omitted to deal with that.

[2] I gave leave to the parties to submit memoranda. Mr Bedogni, for Mr Oliphant, seeks costs on a 2B basis totalling $8,123.65. Mr Clode opposes the award of costs which he requests be reserved until the substantive proceeding is determined, given the judgment determined he has a serious question to be tried.

[3] The usual rule is costs are awarded to the successful party. Rule 14.8 of the High Court Rules 2016 provide costs on an opposed interlocutory application must be fixed when the application is determined “unless there are special reasons to the contrary”.

[4] There is no reason why the usual rule should not be followed in this case and there is no special reason why costs should not be fixed now. The observations in the interlocutory judgment about the merits of the substantive case do not suggest otherwise.

[5]I award costs of the interlocutory application to the respondents as sought.

Palmer J

1 Clode v Oliphant [2018] NZHC 1442.

CaseChat Overview and Summary

The case of Clode v Oliphant involves Brent Douglas Clode, the applicant, against David James Oliphant, Auburn Development Limited, and Railside Investment Limited, the respondents. The dispute revolves around an earlier application by Mr. Clode for a mandatory interim injunction against the respondents, which was declined by the court. The matter now concerns the application for costs made by the respondents, specifically the first respondent represented by P J Bedogoni, against Mr. Clode, who appeared in person. The decision was rendered on the papers, and the judgment was delivered on 16 July 2018.

The legal issue before the court was whether costs should be awarded to the respondents for the interlocutory application, given that the initial judgment had declined to address the matter. The respondents sought costs amounting to $8,123.65 on a 2B basis, while Mr. Clode opposed the immediate award of costs, requesting that the matter be reserved until the substantive proceeding was determined. The court had to consider whether the usual rule of awarding costs to the successful party should apply, given that the respondents had successfully defended the interlocutory application, and whether there were any special reasons to deviate from this rule.

The court ruled that there were no special reasons to deviate from the usual rule of awarding costs to the successful party in an opposed interlocutory application. Rule 14.8 of the High Court Rules 2016 stipulates that costs must be fixed when the application is determined unless there are special reasons to the contrary. The court found no such special reasons in this case, and the observations made in the interlocutory judgment about the merits of the substantive case did not suggest otherwise. Consequently, the court awarded the respondents the costs as sought.

In summary, the court decided that the usual rule of awarding costs to the successful party should apply in this case, and there were no special reasons to withhold the award of costs at this stage. The court granted the respondents the costs of the interlocutory application as requested, totaling $8,123.65.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established