DHC Assets Limited v Arnerich - [2022] NZHC 611

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-000975

[2022] NZHC 611

BETWEEN
DHC ASSETS LIMITED

Plaintiff

AND

ANTONY IVO ARNERICH

Defendant

On the papers: 15 December 2021

Counsel:

F Thorp for the Plaintiff

D A Cowan and J McBridge for the Defendant

Judgment:

30 March 2022

COSTS JUDGMENT OF ASSOCIATE JUDGE GARDINER

This judgment was delivered by me on 30 March 2022 at 11.30 a.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar
Date.......................................

Solicitors:

Duthie Whyte, Auckland Doug Cowan, Auckland

F Thorp and L Turner, Auckland
J McBride and A J Steel, Auckland

DHC ASSETS LTD v ARNERICH [2022] NZHC 611 [30 March 2022]

Introduction

[1] On 2 November 2021, DHC Assets Limited (DHC) filed a notice of discontinuance of this proceeding, reserving its position on costs.

[2] Antony Ivo Arnerich now seeks his costs on the discontinuance. Specifically, Mr Arnerich claims, relying on rr 15.23 and 14.8(2) of the High Court Rules 2016:

(a)reversal of this Court’s order that he pay costs on his unsuccessful application to strike out this proceeding; and

(b)a costs order in his favour on that strike-out application of $8,745.50.

Legal framework

[3] Rule 15.23 creates a presumption in favour of awarding costs to a defendant against whom a proceeding has been discontinued:

Unless the defendant otherwise agrees or the Court otherwise orders, a plaintiff who discontinues a proceeding against a defendant must pay costs to the defendant of and incidental to the proceeding up to and including the discontinuance.

[4]Rule 14.8 deals with costs on opposed interlocutory applications:

(1) Costs on an opposed interlocutory application, unless there are special reasons to the contrary,—

(a) must be fixed in accordance with these rules when the application is determined; and

(b) become payable when they are fixed.

(2) Despite subclause (1), the court may reverse, discharge, or vary an order for costs on an interlocutory application if satisfied subsequently that the original order should not have been made.

(3) This rule does not apply to an application for summary judgment. (emphasis added)

[5]McGechan on Procedure notes the rationale for r 14.8:1

The rule reflects the fact that the merits of particular applications and those of the substantive proceedings are different matters: Chapman v Badon Ltd [2010] NZCA 613, (2010) 20 PRNZ 83 at [12].

[6] Williams J reviewed the authorities relating to r 14.8(2) in Palmerston North City Council v Hardiway Enterprises Ltd.2 He concluded that the rule tends to be used in three circumstances:

(a)When the interlocutory decision is reversed on appeal. Williams J found that most cases under r 14.8(2) involve a party seeking to reverse an adverse costs order in the High Court after successfully appealing the interlocutory decision in the Court of Appeal. Examples include Ngāti Hurungaterangi v Ngāti Wāhiao3 and Wholesale Distributors Ltd v Songle Supermarkets Ltd.4

(b)Where a party failed to mention costs or incorrectly stated the…

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.

Keep reading for free

Create a free CaseChat account to read DHC Assets Limited v Arnerich and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] NZHC 611
Decision Date: 30 March 2022

CaseChat Overview and Summary

DHC Assets Limited filed a proceeding against Antony Ivo Arnerich in the High Court of New Zealand, Auckland Registry. The plaintiff sought to recover certain debts and damages from the defendant. Arnerich filed an application to strike out the proceeding, which was unsuccessful. He now seeks a review of the costs order made against him on his unsuccessful application, arguing that the original order should not have been made and that the plaintiff should have been ordered to pay his costs. The court must determine whether the circumstances of this case fall within the categories of cases where earlier costs orders on interlocutory applications have been reversed. This includes cases where the interlocutory decision is reversed on appeal, where a party failed to mention costs or incorrectly stated the position on costs at the hearing, or where there was a lack of information before the court when making the costs award.

The court found that the circumstances of this case do not fall within any of the categories of cases where earlier costs orders on interlocutory applications have been reversed. The decision dismissing Arnerich's interlocutory application to strike out the proceeding has not been reversed on appeal. The judgment stands. There is no suggestion that the position regarding costs was not mentioned, nor that the court lacked information when making the costs award. Furthermore, the court is not satisfied that the cost order in question should not have been made. The court found that the proceeding was not an abuse of process, as the cause of action upon which it was based was not res judicata. The court declined to exercise its discretion to reverse the costs order against Arnerich on his unsuccessful application to strike out and make a costs order in his favour on the terms sought.

Orders