Craike v Tilsley

[2012] NZHC 2886

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-002846 [2012] NZHC 2886

BETWEEN  DAVID JOHN CRAIKE AND JAYNE ANNETTE CRAIKE

First Plaintiffs

ANDSHOWFIELDS EQUESTRIAN CENTRE LIMITED

Second Plaintiff

ANDROBERT TILSLEY First Defendant

ANDS D WATSON LIMITED Second Defendant

ANDSTEWART DAVID WATSON Third Defendant

ANDEARL SAMUEL WATSON Fourth Defendant

ANDROBERT WATSON Fifth Defendant

Hearing:         On the papers

Counsel:         NW Woods for Plaintiffs

PJP Grace and SL Robertson for First Defendant
P Webb for Second to Fifth Defendants

Judgment:      2 November 2012

JUDGMENT OF ASHER J (Costs)

This judgment was delivered by me on Friday, 2 November 2012 at 11am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

Rice Craig, DX EP 76506, Papakura, Auckland. Email:  [email protected]
PJP Grace, PO Box 1144, Pukekohe, Email:  [email protected]

P Webb, PO Box 76461, Manukau, Auckland. Email:  [email protected]

CRAIKE V TILSLEY HC AK CIV-2010-404-002846 [2 November 2012]

Introduction

[1]      The plaintiffs failed entirely in their claim against the first defendant in a reserved judgment delivered on 3 September 2012.[1]    Mr Tilsley who was the successful first defendant seeks costs against the plaintiffs.

[1] Craike v Tilsley [2012] NZHC 2260.

[2]      In addition to standard costs on a 2B basis, increased costs are sought.  There are two grounds for this.  First, it is argued that a portion of the original claim against Mr Tilsley was  discontinued,  and  could  never have succeeded.   It  having been improperly and unnecessarily commenced, in terms of r 14.6(3)(b)(ii) of the High Court Rules there should be increased costs.

[3]      The second ground is that there was a Calderbank offer made, inviting the plaintiffs to discontinue and offering the sum of $20,000 in settlement.  This offer was made approximately a month prior to trial in a detailed letter which set out Mr Tilsley’s position and the weaknesses in the plaintiffs’ case.

[4]      For the plaintiffs it is submitted that scale costs on a 2B basis are appropriate.

Discussion

[5]      The portion of the claim that was effectively discontinued related to work on the lower access road to the lower paddocks.  I accept that the claim in relation to this work was obviously weak.  There was a lack of evidence showing any actual involvement on Mr Tilsley’s part in respect of that work, as distinct from the work on the upper grass area and the arena surfaces.  That weakness was confirmed in a security for costs judgment of 28 March 2012.[2]   Weak cases are often discontinued without there being an order of increased costs, and plaintiffs should not be deterred from dropping weak parts of their claim for fear of draconian cost orders.  On the

other hand, patently weak claims should be discouraged.

[2] Craike v Tilsley [2012] NZHC 565.

[6]      The  Calderbank  offer  came  down  in  essence  to  an  elaboration  of  the statement of defence with the weaknesses in the plaintiffs’ case being articulated, accompanied by an offer of $20,000.  The $20,000 offer in the order of things was never going to be accepted unless the plaintiffs were prepared to give up.  Successful defendants who in letter form record their defences and invite a settlement should not necessarily be in a stronger position than any other defendant who takes the same position without sending a letter.

[7]      On balance I do not consider that a case for any significant increased costs is made out.  However, the patent weakness of the claim in relation to the lower access road referred to in the security for costs judgment of 28 March 2012 warrants some modest increase.

Summary

[8]      I  thus  award  costs  on  a  2B  basis  as  set  out  in  the  first  defendant’s

memorandum, certifying for second counsel, with an uplift of $7,500.

[9]      The disbursements of $52,047.54 are not disputed and I order that they are payable.

……………………………..

Asher J