DDL Limited v Greig

[2019] NZHC 2747

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2019-485-354

[2019] NZHC 2747

BETWEEN

DDL LIMITED

Plaintiff

AND

DAVID ALEXANDER EDEN GREIG

Defendant

Appearances:	P S J Withnall for plaintiff Defendant in person
Judgment:	29 October 2019

COSTS JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

[On the papers]

[1]    In my judgment of 23 September 2019 I concluded that the plaintiff was entitled to summary judgment and an order for specific performance of a contract between the parties pursuant to which the plaintiff was entitled to acquire a residential property from the defendant on certain terms.

[2]    I reserved costs, not having heard from the parties in relation to these, and directed that if the parties were unable to resolve costs themselves they could file memoranda and I would deal with them on the papers.

[3]    The plaintiff now seeks costs. It also seeks clarification as to the terms of the Court’s order for specific performance of the contract.

[4]The defendant has replied in terms that I will address below.

DDL LIMITED v GREIG [2019] NZHC 2747 [29 October 2019]

Costs

[5]    The principles relating to costs are well settled and are set out in pt 14 of the High Court Rules 2016. Essentially:

(a)Costs are ultimately for the Court’s discretion though that discretion, like all others, has to be exercised on a principled basis;

(b)Costs generally follow the event, that is to say the successful party is entitled to an award of costs other than in exceptional circumstances;

(c)Costs are awarded accordingly to the scales contained in the High Court Rules;

(d)There is provision for decreased and increased costs to meet the particular circumstances of individual cases, but those considerations do not feature here.

[6]    In my judgment I expressed the preliminary view that the plaintiff as the successful party was entitled to its costs on a 2B basis (which, for the benefit of the defendant, is the middle ground provided for in the Rules).

[7]    Having reviewed Mr Withnall’s memorandum and the defendant’s response, I see no reason to depart from that preliminary conclusion and I order that the defendant is to pay the plaintiff’s costs on that basis.

[8]    As to quantum, the defendant has asked the Court to review Mr Withnall’s calculation of costs on a 2B basis (and the plaintiff’s disbursements) to ensure that they are calculated correctly. I have done so. Mr Withnall’s calculation of costs on a 2B basis appears to me to be accurate.

[9]    The plaintiff is entitled to costs totalling $15,198 together with disbursements totalling $1,745.10.

The defendant’s position

[10]   In his memorandum, the defendant invites the Court to award damages in respect of alleged breaches by the plaintiff of a guarantee in respect of rental for the property which is the subject matter of the proceeding and on other bases.

[11]There is no claim before the Court in respect of such matters.

[12]   In my judgment, I outlined the defendant’s concerns about these matters as articulated by him during the course of the hearing and expressed some doubt as to whether any claim could succeed. But, for present purposes, the short point is that the Court has no jurisdiction to make any such award at this stage.

The terms of the order

[13]   I have reviewed Mr Withnall’s draft order for specific performance. It seems to me to be in appropriate terms subject to one point. It requires the transaction to be completed, or at least that the defendant execute the relevant conveyancing documentation, within 10 working days. That appears to me to be an inappropriately abrupt timeframe.

[14]   I approve the terms of the draft order subject to the period for compliance being altered from 10 to 20 working days as suggested by the defendant.

Associate Judge Johnston

Solicitors:
Gault Mitchell Law, Wellington for plaintiff