Cynortic Water Systems Limited v Saunders Robinson Brown

[2016] NZHC 2864

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2016-409-000111 [2016] NZHC 2864

BETWEEN

CYNORTIC WATER SYSTEMS

LIMITED First Plaintiff

MARK JAMES SULLIVAN AND SUSAN MARY SULLIVAN Second Plaintiffs

AND

SAUNDERS ROBINSON BROWN Defendant

Hearing:	(Dealt with on the papers)
Counsel:	D G Hurd for First and Second Plaintiffs A Eckford for Defendant
Judgment:	30 November 2016

JUDGMENT OF GENDALL J (As to Costs)

[1]      By application dated 24 August 2016 the plaintiffs sought three orders from this Court:

(a)       An  order  that  a  priority  fixture  be  allocated  for  the  substantive determination of this proceeding.

(b)An  order  that  further  and  better  discovery  be  provided  by  the defendants within categories set out in the schedule to the application.

(c)       An  order  for  inspection  of  the  defendant’s  document  numbered

AM1431 in its affidavit of documents for which privilege had been claimed.

CYNORTIC WATER SYSTEMS LIMITED v SAUNDERS ROBINSON BROWN [2016] NZHC 2864 [30 November 2016]

[2]      That application was heard before this Court on 21 September 2016.

[3]      On  that  date  I  issued  a  minute  which  effectively  disposed  of  the  first application for a priority fixture.  So far as the second application was concerned, counsel  for  the  plaintiffs  confirmed  that  the  discovery  question  had  now  been resolved  and that  application fell  away.   As to the third application  concerning inspection of the defendant’s document for which privilege was claimed, I directed that the document in question was to be provided to me for inspection and I would give my decision on that application thereafter.

[4]      The document AM1431 was provided to me and on 1 November 2016 I gave my judgment confirming that the document AM1431 did attract litigation privilege and in terms of s 56 Evidence Act 2006 was not properly disclosable to the plaintiffs.

[5]      On 14 November 2016 counsel for the defendant filed a memorandum in this Court indicating that the defendant sought costs from the plaintiff with respect to these applications.

[6]      Counsel for the plaintiff responded by memorandum dated 18 November

2016 suggesting that as each party had effectively succeeded here on one aspect of the applications before the Court, with the third aspect not having to be determined, costs should simply lie where they fall and no order be made here.

[7]      I now turn to consider that costs application.

Priority fixture

[8]      So far as the first application for a priority fixture was concerned, no order was finally made for such.  Notwithstanding this, it is clear that I was able to find a hearing time for this matter commencing 27 February 2017 which the parties accepted.  It is true that fixture was shortly thereafter vacated, I understand, because of the unavailability of  one counsel  and  the  matter has  now been  set  down to commence on 1 May 2017.

[9]      Effectively,  therefore,  it  is  said  that  an  early fixture was  provided,  even though no final decision was made on the priority application itself.

[10]     On this aspect, I find that in a general sense the priority fixture application neither succeeded nor failed.  The original 27 February 2017 date for hearing of this matter was a reasonably early date to cope with the situation described to the Court by the plaintiffs.

[11]     I am satisfied therefore that no costs order should follow with respect to that particular application.

Application for further and better discovery

[12]     On this, the plaintiffs contend that the application effectively succeeded as the  defendant  had  agreed  to  discover  the  documents  in  question,  which  were Mr Marsh’s trial notes.  The plaintiffs claim these ought to have been discovered in the first place.   So far as other documents are concerned, the plaintiffs say they accepted the assurance from the defendant that it had no documents sought in its control.

[13]     Although  counsel  for  the  defendants  in  their  submission  suggest  the plaintiffs’ discovery application was premature in that it failed to give the defendant adequate time to respond to earlier requests and that, in any event, its success was extremely limited, I take the view that, again, the just conclusion is that no order for costs should be made with respect to this further and better discovery application.

Application for inspection of privileged documents

[14]   Following inspection of this particular document AM1431 held by the defendant, I determined that the claim to privilege was reasonably made and I upheld this.  Thus, the defendant states here that it has been wholly successful in opposing inspection of this document and therefore they should receive an award of costs on the simple basis that costs should follow the event.

[15]     The  plaintiffs  oppose  any  award  of  costs  being  made  in  large  measure because they say the plaintiffs had suggested the relevant material be provided on a counsel only basis for review to determine whether counsel for the plaintiffs agreed that privilege attached to the document.  This, however, did not occur it seems, in part  perhaps,  because  the  defendant  suggests  the  very  fact  of  producing  the document to counsel may have indicated that privilege was waived.  This is disputed by  counsel  for  the  plaintiffs  who  maintained  that  the  sensible  and  pragmatic approach in this case would have been the one they suggested, that the document be made  available  initially  on  a  counsel  only  basis.    If  further  proceedings  were required because of a disputed privilege claim, then that was another matter, but here, because of the defendant’s stance, matters did not proceed to that point.

[16]     This particular costs claim, in my view, is reasonably finely balanced.  It is true that the defendants have succeeded in their claim to maintain privilege for this document AM1431.  But against that, I am of the view that the plaintiffs’ pragmatic suggestion (rejected by the defendant) that the document could have been made available on a counsel only basis which may well have obviated the need for the disputed hearing, has some merit.  On balance, and in the overall interests of justice in this matter, I find that costs with respect to the application for inspection of the document confirmed as privileged should lie where they fall.

[17]     For all these reasons there is to be no order made as to costs.   Costs are simply to lie where they fall.

...................................................

Gendall J

Solicitors:

Bill Dwyer, Christchurch

Parker Cowan, Queenstown

Copy to:

David Hurd, Auckland