Crystal Imports Limited v Warners Properties Limited HC Christchurch CIV 2010-409-001320

[2011] NZHC 1556

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV 2010-409-001320

UNDER  The Fair Trading Act 1986

BETWEEN  CRYSTAL IMPORTS LIMITED Plaintiff

ANDWARNERS PROPERTIES LIMITED First Defendant

ANDWARNERS HERITAGE HOTEL LIMITED

Second Defendant

Counsel:         S L Kaminski for the Plaintiff

H C Matthews for the Defendants

Judgment:      22 June 2011

JUDGMENT AS TO COSTS OF ASSOCIATE JUDGE CHRISTIANSEN

This judgment was delivered by me on

22.06.11 at 11:30am, pursuant to

Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors/Counsel:

S Kaminski, Barrister, Christchurch – [email protected]

H Matthews, White Fox & Jones, Christchurch – [email protected]

CRYSTAL IMPORTS LIMITED V WARNERS PROPERTIES LIMITED HC CHCH CIV 2010-409-001320 22

June 2011

[1]      On 5 April 2011 the plaintiff filed a notice of discontinuance.  The plaintiff has applied for costs on a 2B basis.  These included a disbursement of $90.00 are calculated to be $14,378.00.

[2]      Plaintiff’s  counsel  acknowledges  pursuant  to  15.23  the  defendants  are entitled to costs unless the Court was to exercise its discretions to order otherwise. Counsel suggests this case is appropriate for an otherwise order.

[3]      Counsel advises an issue arose regarding the lease to a property purchased by the plaintiff.  Since, the matter has been overtaken by the earthquake events and the property in question is red stickered and located within the red zone.

[4]      Counsel urges that it was a pointless waste of anyone’s time pursuing an

argument about how a lease intended to carry on into the future.

[5]      The response of defendants’ counsel submits the Court should not depart from the presumption created by Rule 15.23.  Counsel does not accept that the lease of the premises will be terminated until a fuller picture is available of the actual damage to the premises.

[6]      Counsel refers to the authority of the North Shore City Council v Local Government Commission and Independent Devonport Society (Inc)1, referring to an event beyond the parties’ control rendering a proceeding nugatory.  In that case the learned Judge held it was not a reason to displace the presumption created by Rule

15.23.

[7]      Some leverage is needed in this case.  Circumstances beyond the control of the parties have in  effect brought an  early end  to a proceeding which  in other circumstances would likely certainly have endured.  This case should not ignore the circumstances of a very significant kind which have impacted to bring an end to the proceeding.   Some discount is appropriate.   I propose allowing a discount in the

order of 20 per cent.

1 North Shore City Council v Local Government Commission and independent Devonport Society

(Inc) (HC) Auckland, 4 September 1995, Tompkins J.

[8]      I fix costs payable by the plaintiff to the defendants in the sum of $11,500.00

inclusive of disbursements.

Associate Judge Christiansen