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DGL Manufacturing Ltd v Simmonds

DGL Manufacturing Ltd v Simmonds

Case [2022] NZHC 1434 17 June 2022

Civil Litigation & Procedure

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-167

[2022] NZHC 1434

BETWEEN
DGL MANUFACTURING LIMITED

(formerly CHEMPRO NZ LIMITED) Plaintiff and First Counterclaim Defendant

AND

RODNEY WAYNE SIMMONDS

Defendant and Counterclaim Plaintiff

SIMON HENRY

Second Counterclaim Defendant

Hearing: On the papers

Counsel / Parties:

R B Hucker for the Defendant and Counterclaim Plaintiff G A Cooper for the Second Counterclaim Defendant

Judgment:

17 June 2022

JUDGMENT OF GAULT J

(Costs)

This judgment was delivered by me on 17 June 2022 at 4:00 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar

……………………………………

Solicitors:
Mr R B Hucker, Hucker Associates, Auckland Mr G A Cooper, Cavell Leitch, Christchurch

DGL MANUFACTURING LTD v SIMMONDS [2022] NZHC 1434 [17 June 2022]

[1] The defendant and counterclaim plaintiff, Mr Simmonds, seeks costs following the adjournment of an eight day trial scheduled to commence on 7 March 2022.1 The matter was referred to me as a subsequent Duty Judge to deal with the issue on the papers.

[2] Mr Simmonds seeks 2B scale costs in relation to responding to the adjournment application and preparing a costs memorandum, and wasted costs of trial preparation, totalling $14,041.25 plus disbursements of $6,210.

[3] The second counterclaim defendant, Mr Henry, opposes the application for wasted costs and submits that costs on the adjournment application should be reserved and dealt with by the trial Judge.

Adjournment application

[4]The trial date was allocated on 19 November 2020.

[5]Mr Henry applied for the adjournment on 4 February 2022 on two grounds:

(a)he was in Australia and would be unable to return to New Zealand until 7 March 2022, at which point he would be required to undertake 10 days in self-isolation in accordance with Government COVID-19 announcements; and

(b)an expert engaged by the plaintiff/first counterclaim defendant (DGL) had not been able to complete his expert report in response to Mr Simmonds’ expert’s brief of evidence.

[6] Justice Campbell’s minute of 10 February 2022 records that Mr Hucker, for Mr Simmonds, advised that, given the first ground set out in the application, Mr Simmonds abided the decision of the Court. He did not accept the second ground.

1 Minute of Campbell J dated 10 February 2022.

[7] Without expressing any view on the second ground, Campbell J adjourned the trial on the basis that DGL and Mr Henry would be prejudiced if Mr Henry were in self-isolation during the trial. He reserved leave to Mr Simmonds to file and serve a memorandum seeking wasted costs on the adjournment.

[8] Mr Hucker submits that the adjournment was because Mr Henry voluntarily left New Zealand in mid-November 2021. Mr Hucker submits the trial date was known at the time and the risk of not being able to return to New Zealand for trial preparation and the trial was a risk that must also have been known to, and accepted by, Mr Henry but that risk was not known to, nor…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DGL Manufacturing Ltd v Simmonds

Details

AGLC: DGL Manufacturing Ltd v Simmonds [2022] NZHC 1434
Case: [2022] NZHC 1434
Decision Date: 17 June 2022

CaseChat Overview and Summary

In the High Court of New Zealand, DGL Manufacturing Ltd (formerly Chempro NZ Limited) initiated proceedings against Rodney Wayne Simmonds, who in turn filed a counterclaim against DGL Manufacturing Ltd. Simmonds further filed a second counterclaim against Simon Henry. The case revolves around the costs incurred by Simmonds following the adjournment of an eight-day trial that was scheduled to commence on 7 March 2022. Simmonds sought 2B scale costs in relation to responding to the adjournment application and preparing a costs memorandum, and wasted costs of trial preparation, totaling $14,041.25 plus disbursements of $6,210. Simon Henry, the second counterclaim defendant, opposed the application for wasted costs and argued that costs on the adjournment application should be reserved and dealt with by the trial judge.

The legal issues before the court included whether costs on an opposed interlocutory application must be fixed when the application is determined unless there are special reasons to the contrary, and whether the Court has jurisdiction to make an order for wasted costs against a party whose default causes a fixture to be vacated. The court also had to determine whether the defendant’s decision to travel to Australia for business in November 2021, intending to return when he understood MIQ spots would become available from 17 January 2022, amounted to a default warranting an award for wasted costs.

The court held that costs on an opposed interlocutory application must be fixed when the application is determined unless there are special reasons to the contrary. The court found that there were no special reasons in this case such that costs on the adjournment application should be reserved and dealt with by the trial judge. The court also held that it has jurisdiction to make an order for wasted costs against a party whose default causes a fixture to be vacated. However, in this case, the court found that the defendant’s decision to travel to Australia for business did not amount to a default warranting an award for wasted costs. The court found that the adjournment was granted without criticism of the defendant, and it was not a case involving breach of Court timetable or other orders or a belated application expanding the scope of the trial or other indulgence which results in prejudice to another party necessitating an adjournment.

In conclusion, the court declined to award costs to Simmonds. The court found that Simmonds was not entitled to a wasted costs award for trial preparation by his counsel or expert, nor was he entitled to costs on costs. The court held that while the parties will have incurred trial preparation costs, some of which will need to be incurred again for the adjourned trial, this was not a case where a party’s default had caused the fixture to be vacated.

Orders