Dobbe v Taylor

[2023] NZHC 2391

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-1978

[2023] NZHC 2391

BETWEEN

RAYMOND HENRY DOBBE and CHD TRUSTEES (DOBBE) LIMITED, as

trustees of the EMW TRUST Plaintiffs

AND

DOUGLAS OWEN TAYLOR

First Defendant

DTB CONSTRUCTION LIMITED
Second Defendant

AUCKLAND COUNCIL

Fifth Defendant

Hearing:

(On the papers)

Appearances:

S E Russell for Plaintiffs

A J B Holmes for First and Second Defendants

Judgment:

30 August 2023

JUDGMENT OF ASSOCIATE JUDGE LESTER

(costs)

This Judgment was delivered by me on 30 August 2023 at 12:30pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date: …..

DOBBE v TAYLOR [2023] NZHC 2391 [30 August 2023]

[1]    At the conclusion of my judgment of 9 August 2023,1 concerning the defendants’ application for further and better particulars and to strike out, I noted that the parties had shared success. As to costs, I made a default order that unless costs submissions were filed, then there would be no order as to costs. Each party has sought costs against the other.

[2]    I have not been persuaded to change my initial view that costs should lie where they fall.

[3]    As to the defendants’ strike out application, it was dismissed in its entirety. Mr Holmes, counsel for the defendants, submits costs in respect of that application should be reserved pending the outcome of the substantive matter.

[4]Rule 14.8 of the High Court Rules 2016 (the Rules) provides:

14.8     Costs on 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

[5]    There are no special reasons in respect of the strike out application that point against fixing costs now.

[6]    As to the defendants’ application for particulars, that application was the subject of a hearing in Auckland in April 2023 which resulted in the plaintiffs agreeing to file an amended statement of claim. The fourth amended statement of claim was filed on 19 May 2023. Mr Holmes amended his  application for particulars and it  was that application which was the subject of the 9 August 2023 judgment. The end result of that application is that a further amended statement of claim is to be filed.

[7]    As recorded in  my  judgment  (of  9  August  2023)  during  submissions,  Mr Russell, counsel for the plaintiffs, accepted the plaintiffs needed to amend some aspects of the claim. While not all the particulars sought were granted, the bottom line

1      Dobbe v Taylor [2023] NZHC 2122.

is that the pursuit of particulars has resulted in the plaintiffs accepting the need to amend the pleadings on two occasions. The defendants were the substantially successful party in respect of that application.

[8]    Accordingly, I remain of the view that split success makes it appropriate that there be no order as to costs in respect of these applications and that is the order I now make.

Associate Judge Lester