Craig v Donaldson - [2012] NZHC 3100

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2011-409-811 [2012] NZHC 3100

BETWEEN DAVID LEONARD CRAIG Plaintiff

ANDJOANNE MARGARET DONALDSON Defendant

Hearing: On the papers

Appearances: M J Wallace for Plaintiff
C A Corlett for Defendant

Judgment: 21 November 2012

COSTS JUDGMENT OF FOGARTY J

[1] In the judgment of this Court delivered by me on 31 August last, the plaintiff was awarded the sum of $7,230. The balance of the claim ($414,375.86) was dismissed. Costs were reserved.

[2] Before these proceedings were commenced in May of 2011, the defendant’s

solicitor sent a letter without prejudice, except as to costs, offering the plaintiff

$7,230. Saying:

The rationale for the offer is that this was the first sum Dave paid to the South African family, prior to Joanne travelling there, after which he was involved on a regular basis.

[3] The letter also advised that the defendant and her husband’s company, Hanmer Refuse Services Ltd, was facing insolvent liquidation with the probable call up of personal guarantees:

They are meeting with the bank and an insolvency practitioner next week. As you can therefore appreciate, time is of the essence.

CRAIG V DONALDSON HC CHCH CIV-2011-409-811 [21 November 2012]

[4] The offer was not accepted.

[5] After the proceedings were issued, on 15 February 2012, the defendant offered to forego her entitlement for costs if the plaintiff discontinued. This offer was renewed on 30 April, together with advice that the defendant had virtually no assets and the plaintiff would be unable to recover any judgment sum. This letter was also without prejudice save as to costs. The defendant’s entitlement to costs as at that date was assessed on a Catergory 2B basis to be approximately $15,040.

[6] On 7 June, the plaintiff proposed a judicial settlement conference which was rejected by the defendant on the basis that there “is little litigation risk”.

[7] The defendant was billed privately for the proceedings up until 21 June 2012. During this period she incurred fees of $11,708.75 inclusive of GST and disbursements. These fees were all incurred after the first Calderbank letter was sent. On a 2B basis, she would have been entitled to claim $15,792 plus disbursements. Acknowledging that the order costs should not exceed actual costs, she therefore limits her claim for costs to $11,708.75 for the period when she was not legally aided.

[8] The defendant was granted legal aid on 1 August 2012, and invoices of

$9,206.90 including GST and disbursements have been rendered to the Ministry of Justice. The 2B costs for the period the defendant was legally aided far exceed the amount invoice. On the schedules, the costs would be $19,303. Again, pursuant to r 14.2(f), she limits her claim to the actual invoices. Therefore, she seeks costs in the sum of $20,915.65.

[9] The plaintiff opposes an order for costs. His counsel relies on r 14.2(a) of the High Court Rules, which provides that a party who fails should pay costs to the party who succeeds. Second,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Craig v Donaldson

Details

AGLC: Craig v Donaldson [2012] NZHC 3100
Case: [2012] NZHC 3100
Decision Date: 21 November 2012

CaseChat Overview and Summary

In the case of Craig v Donaldson, the plaintiff, David Leonard Craig, sought damages against the defendant, Joanne Margaret Donaldson, in the High Court of New Zealand. The plaintiff's claim was primarily for unpaid loans, with a total amount sought of $421,605.86. The court awarded the plaintiff $7,230 but dismissed the remaining balance of the claim. Costs were reserved for determination.

The legal issues before the court included whether the defendant was entitled to costs under the High Court Rules, specifically r 14.11, given that she had made a Calderbank offer before the proceedings began. The plaintiff argued that the defendant's Calderbank offer did not entitle her to costs because the offer did not exceed the amount of the judgment obtained by the plaintiff. The plaintiff also contended that costs should lie where they fall, meaning that neither party should be awarded costs.

The court considered the structure and language of r 14.11 and the relevant case law. The court noted that the defendant's Calderbank offer was close to the value of the judgment obtained by the plaintiff. It held that the defendant's conduct, including her subsequent offers, justified not awarding any costs to the plaintiff. The court determined that the original and subsequent offers, made without prejudice except as to costs, warranted the plaintiff's costs being disregarded. Therefore, the court ruled that costs should lie where they fall, meaning neither party would be awarded costs.

The final order of the court was that costs shall lie where they fall. This decision was based on the court's interpretation of r 14.11 and the principle that costs should be predictable and expeditious. The court found that the defendant's Calderbank offer and subsequent conduct justified not awarding costs to the plaintiff.

Orders