Dunstan v Genesis Energy Limited

[2024] NZHC 2342

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2024-412-24

[2024] NZHC 2342

UNDER

the Contract and Commercial Law Act 2017; Consumer Guarantees Act 1993; and Fair Trading Act 1986.

IN THE MATTER

of alleged breaches of the Contract and Commercial Law Act 2017; Consumer Guarantees Act 1993; and Fair Trading Act 1986.

BETWEEN

ANTHONY ROBERT DUNSTAN

Plaintiff

AND

GENESIS ENERGY LIMITED

First Defendant

FRANK ENERGY LIMITED

Second Defendant

Hearing:

(On the papers)

Appearances:

A R Dunstan – self-represented Plaintiff

C S Fleetwood-Smith and H Clarke for First and Second Defendants

Judgment:

21 August 2024

JUDGMENT OF ASSOCIATE JUDGE LESTER

(costs)

DUNSTAN v GENESIS ENERGY LIMITED [2024] NZHC 2342 [21 August 2024]

[1]                 Following my judgment of 26 July 2024 (the July judgment) confirming that the defendants’ statement of defence was filed before Mr Dunstan’s informal request for formal proof, the defendants seek costs.1

[2]                 The starting position is that costs follow the event, that is, in effect a default rule that the party who succeeds in a hearing is entitled to costs.

[3]                 I do not repeat the circumstances set out in the July judgment in which        Mr Dunstan was unfortunately given incorrect advice by the Registry. Because that error by the Registry played an understandably significant role in Mr Dunstan maintaining that the statement of defence was filed after his formal proof request,     I indicated in the July judgment that if the defendants sought costs, that reality should be reflected in their application.

[4]                 The defendants have taken that indication on board and do not seek costs for filing the application to file their defence out of time.

[5]                 Mr Dunstan opposes costs in a memorandum dated 7 August 2024 which pre-dates the defendants’ memorandum seeking costs of 9 August 2024. However, that memorandum is in realty a critique of the July judgment. Mr Dunstan has not filed a response to the defendants’ 9 August 2024 memorandum.

[6]                 I note the defendants do not seek costs in respect of the telephone conference on 13 June 2024. It was at that telephone conference that the correct date of filing of the statement of defence was identified. The Minute issued following that conference provided Mr Dunstan with evidence as to the correct date of the filing.

1      Dunstan v Genesis Energy Ltd [2024] NZHC 2051.

[7]                 The defendants have excluded from their costs claim, costs before the confusion in respect of the filing date was clarified. That was appropriate. However, there is no reason to depart from the usual rule that costs follow the event and I find the defendants are entitled to costs in the sum of $8,006.50 as per the Schedule annexed to the defendants’ memorandum of 9 August 2024, and I so order.

Associate Judge Lester

Solicitors:

Russell McVeagh, Auckland (for Defendants)

Copy to:
Mr A Dunstan – self-represented Plaintiff