Comerford v Porirua City Council HC Wellington CIV-2009-485-1387

[2011] NZHC 914

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2009-485-1387

BETWEEN  BRYAN COMERFORD AND RACHEL COMERFORD

Plaintiffs

ANDPORIRUA CITY COUNCIL First Defendant

ANDANDREW JAMES RYAN AND LEISA JANE RYAN

Second Defendant

ANDRAY FERGUSON AND OTHERS First Defendants First Third Party

Hearing:         On the papers

Counsel:         M C Josephson and J E Collins for Plaintiffs

C Matsis for Second Defendants

Judgment:      16 August 2011 at 11:00 AM

I direct the Registrar to endorse this judgment with a delivery time of 11am on the

16th day of August 2011.

JUDGMENT OF MACKENZIE J

[1]      This proceeding was settled shortly before trial.  One matter which remains for resolution is the issue of costs between the plaintiffs and the second defendant, Mrs Ryan.   As a part of the overall settlement, the claim against Mrs Ryan was discontinued, subject to the resolution of costs.   I fixed a timetable for filing memoranda on costs and these have now been received.

[2]      Mrs Ryan seeks costs on a 2B basis against the plaintiffs.

COMERFORD V PORIRUA CITY COUNCIL HC WN CIV-2009-485-1387 16 August 2011

[3]      The  background  is  that  the  plaintiffs  originally  joined  as  defendants  the Porirua City Council and Mr Ryan.  Mr Ryan applied to join Mrs Ryan, his ex-wife, as an additional defendant.  On 15 September 2009 Associate Judge Gendall ordered that Mrs Ryan be added as an additional second defendant.   The order was not opposed and was made with the consent of the plaintiffs and the Council.

[4]      The plaintiffs thereafter formulated their claims for negligence as developer against both Mr and Mrs Ryan.

[5]      Mrs Ryan accepts that she was joined to the proceedings on the application of Mr Ryan but her counsel submits that that does not displace the presumption in r 15.23 that a plaintiff who discontinues against a defendant must pay costs to that defendant;  that the plaintiffs did not oppose the application to join Mrs Ryan;  that they amended the claim to seek relief against her;    and that they distinguished in their claim between Mrs Ryan and Mr Ryan.

[6]      Counsel for the plaintiffs submits that there should be a Sanderson order by which costs in favour of Mrs Ryan should be ordered against Mr Ryan rather than against the plaintiffs.  In a reply memorandum, counsel for Mrs Ryan opposes that course.

[7]      This situation as to costs when one defendant is successful and one is not, as in this case, is described in the commentary to McGechan on Procedure in these terms:[1]

[1] Andrew Beck and Others McGechan on Procedure (looseleaf ed, Brookers, Wellington, updated to 5 July 2011) at [HR14.14.02(2)].

Costs orders as between a successful and an unsuccessful defendant can be achieved by either of the following:

(a)       A “Bullock” order: the circuitous route of ordering the plaintiff to pay the successful defendant’s costs but allowing it full or partial recovery in the costs payable to the plaintiff by the unsuccessful defendant: Bullock v London General Omnibus Co [1907] 1 KB

264(CA); Ronaldson v Rankin [1948] NZLR 850.

(b)       A “Sanderson” order: an order that the unsuccessful defendant pay directly the costs of the successful defendant: Sanderson v Blyth Theatre Co [1903] 2 KB 533 (CA); Brown v Heathcote CoC (No 2)

[1982] 2 NZLR 618 at 627, (but note the overruling of this in Lane

Group Ltd (above) in relation to Bullock orders).

[8]      So far as the position between the plaintiffs and Mrs Ryan is concerned, Mrs Ryan is entitled to costs under r 15.23 of the High Court Rules.   There is no reason in this case to depart from that clear direction.  So far as the position between the plaintiffs and Mrs Ryan is concerned, a “Sanderson” order is not appropriate.

[9]      I am also satisfied, when regard is had to the position between the plaintiffs and Mr Ryan, that a “Sanderson” order is not appropriate.  The claim between the plaintiffs and Mr Ryan has been resolved, by a confession of claim.  It would not be appropriate  to  impose  an  additional  costs  liability  on  Mr Ryan  on  the  present application.

[10]     There will be an order for costs in favour of Mrs Ryan against the plaintiffs in the sum of $24,440 plus disbursements of $521.50.

“A D MacKenzie J”

Solicitors:         Grimshaw & Co, Wellington for Plaintiffs

Gault Mitchell Law, Wellington, for Second Defendants