DB Breweries Limited v McCann HC Nelson CIV-2011-442-000119

[2011] NZHC 1669

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CIV-2011-442-000119

BETWEEN  DB BREWERIES LIMITED Plaintiff

ANDBARRY JOHN MCCANN Defendant

Judgment:      9 November 2011

JUDGMENT OF ASSOCIATE JUDGE MATTHEWS

as to Costs

[1]      I issued a judgment in this matter on 20 September 2011.  After declining the

plaintiff’s application for summary judgment, I awarded costs to the defendant on a

2B basis with disbursements to be fixed by the Registrar.

[2]      On 21 September 2011 I issued a minute in which, for the reasons given in that  minute,  I  invited  submissions  in  relation  to  the  costs  award  made  in  the judgment.

[3]      Mr J M Fitchett, solicitor, describing himself as counsel for the defendant, filed a memorandum dated 22 September 2011 advising the Court that in his submission a costs award to the defendant on a 2B basis was not appropriate, and submitting that it would be appropriate to recall the judgment and make a costs order in favour of the defendant in the sum of $3760.   No mention was made of disbursements.

[4]      Mr Fitchett did not appear for the defendant at the hearing, however he was involved  in  preparation  of  documents  in  support  of  the  defence.    The  sum  he

suggests be awarded by way of costs is considerably less than costs on a 2B basis,

DB BREWERIES LIMITED V MCCANN HC NEL CIV-2011-442-000119 9 November 2011

but equates an account to be rendered to the defendant by Mr Fitchett’s firm for legal

services.

[5]      I  also  received  a  memorandum  from  counsel  for  the  plaintiff.    Counsel submitted that it is not appropriate for an award of costs to be made in favour of the defendant.  Counsel relied on Horowhenua County v Nash (No 2) as authority for the Court to recall the judgment in this case on the basis that the attention of the Court was not drawn to relevant authority or that there are special reasons for the judgment

to be recalled.[1]

[1] Horowhenua County v Nash (No 2) [1968] NZLR 632.

[6]      Counsel submitted that the weight of authorities supports the proposition that on summary judgment applications which are dismissed, costs should generally be reserved in the absence of fault: NZI Bank Ltd v Philpott; Henkel KGAA v Holdfast Manufacturing Ltd.[2]

[2] NZI Bank Ltd v Philpott [1990] 2 NZLR 403; Henkel KGAA v Holdfast Manufacturing Ltd (2004) 17 PRNZ 54.

[7]      Counsel for the plaintiff submitted that the possibility of a dispute of fact only became apparent after the defendant filed affidavits in reply to the plaintiff’s reply  affidavits.    My  view  is  that  a  careful  assessment  by  the  plaintiff  of  the evidence, prior to the hearing, should have led to the application being withdrawn before argument, but by that point a substantial portion of the costs of the case would have already been incurred.   I also accept that it cannot possibly be said that the application should not have been brought in the first place.

[8]      The original award of costs was made on the basis that not only had the defendant been successful, but also that due attention was not paid to the conflicts of evidence  which  are  discussed at  some length  in  the judgment.    However,  after considering the submissions made by the plaintiff and reconsidering the authorities referred to by her, I am satisfied that the judgment should be recalled and reissued with no award of costs, but costs reserved.   Although the proposed award by the defendant is a significant concession, I am satisfied the appropriate course is as I

have outlined.

[9]      Accordingly, the judgment dated 20 September 2011 is recalled and will be

reissued.

J G Matthews

Associate Judge

Solicitors:
Young Hunter, Christchurch

Copy to Defendant – B J McCann, Nelson