Emmons Developments New Zealand Limited v Mitsui Sumitomo Insurance Co Limited

[2015] NZHC 1242

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2014-409-000093 [2015] NZHC 1242

BETWEEN

EMMONS DEVELOPMENTS NEW

ZEALAND LIMITED Plaintiff

AND

MITSUI SUMITOMO INSURANCE CO LIMITED

First Defendant

AND

VERO INSURANCE NEW ZEALAND LIMITED

Second Defendant

Hearing:	4 June 2015 (Determined on the papers)
Counsel:	P J Woods and L M Taylor for Plaintiff G Macdonald for Defendants
Judgment:	5 June 2015

COSTS JUDGMENT OF ASSOCIATE JUDGE MATTHEWS

[1]      On  1  December  2014  the  plaintiff  filed  an  interlocutory  application  for further orders by way of discovery.  In Part A of the application it sought discovery of documents listed in a schedule marked “A”.  In Part B of the application it sought an order directing compliance with a tailored discovery order which had been made on 9 May 2014 in specific ways, and a further direction in relation to privileged documents.

[2]      In relation to the documents sought in Part A specific reference was made to reports by a firm of loss adjustors and a firm of quantity surveyors, as well as an exchange of emails referred to in documents which had been discovered.

[3]      In relation to the orders sought for compliance, and relating to privilege, it

was said that the defendants’ lists of documents filed to date did not comply with

EMMONS DEVELOPMENTS NEW ZEALAND LTD v MITSUI SUMITOMO INSURANCE CO LTD [2015] NZHC 1242 [5 June 2015]

High Court Rule 8.16(3) and/or the listing and exchange protocol in Schedule 9, for given reasons.  As a result the plaintiff was unable to properly consider the claims to privilege and, if necessary, challenge them.

[4]     An affidavit was sworn in support of the application, which annexed correspondence between the solicitors for the parties on the issues raised in the application.

[5]      The application was opposed.  It was called in court on 11 December 2014 and adjourned to 12 February 2015; I presided over the hearing and noted on the file “issues are looking towards resolution”.

[6]      Just  prior  to  the  scheduled  call  on  12  February  2015  counsel  filed  a memorandum which enabled another Judge to make directions for the application to be adjourned to a fixture.

[7]      At  the  same  time,  the  defendants  had  filed  an  application  for  further discovery by the plaintiff.  The joint memorandum filed by counsel for the intended call  on  12  February  dealt  with  both  applications.    So  far  as  the  defendants’ application was concerned, the plaintiff had agreed that it would file a supplementary list  of documents  so the application  did  not  need  to  proceed.   The defendants’ application also sought an order directing the filing and service of a more explicit pleading and, again, the plaintiff agreed to attend to that.

[8]      A fixture for the plaintiff’s discovery application was allocated on 1 May

2015 for a half day.  Both the plaintiff and the defendants prepared, filed and served synopses of argument.  However, the application was finally resolved by a consent order made as a result of a joint memorandum of counsel dated 30 April 2015.  Costs remained extant; when orders were made by consent directions were given for the filing of submissions in relation to costs.

[9]      The plaintiff says that it succeeded on its application, not because it obtained a court order, but because the defendants agreed to provide discovery sought.   It seeks costs on filing and serving the application, interlocutory attendances as I have

summarised, preparing submissions and a bundle of documents for the intended fixture, attendances on a joint memorandum for consent orders, and filing a memorandum in relation to costs.  The total claimed, on a 2B basis, is $9,057.   It says that costs should be awarded now on the principles that costs should follow the event, and costs on interlocutory applications must be fixed and be payable unless there are special reasons to the contrary (r 14.8).

[10]     The  defendants   say  that   they  attended   promptly  to   the  filing   of  a supplementary affidavit in relation to the issues raised in Part B of the application, and that in relation to the various categories of documents listed in Schedule A of the application they have provided the documents sought, or have agreed to do so, with the exception of two categories in respect of which opposition remained, and disclosure of those documents has not been pursued by the plaintiff.  They say that they have taken all reasonable steps to comply with their discovery obligations, that they also required further discovery which necessitated the filing of an application, and resulted in further discovery being given, and that r 14.8 only applies when an application is determined.  They say that the application was not in fact determined, and therefore it cannot be said that the plaintiff succeeded in its application, and that in any event awarding of costs is discretionary.  They note that they have not sought costs in relation to their application for discovery, which resulted in the plaintiff complying with their requirements.

[11]     As  a matter of record,  the application  was  determined  by the Court,  by consent, at least in part – an order was made by consent on 30 April 2015.   That apart, it is clear that the application met with the result the plaintiff intended, so whilst the plaintiff’s requirements were met in part without an order being required, and only in part by a consent order, the plaintiff has generally succeeded. As far as I can tell from material attached to the affidavits filed on this application, the issues had been raised before the application was filed and although part of the application met with success very shortly after it was filed, the balance went to the wire.

[12]     My overall assessment, therefore, is that the plaintiff is entitled to an award of costs.

[13]     I add the following comment, as it is relevant to the approach taken in this case to the resolution of discovery.  Rule 1.2 provides that the objective of the High Court Rules is to secure the just, speedy and  inexpensive determination of any proceeding or interlocutory application.  The issues raised on this application set the progress of this file back by approximately six months. According to counsel for the plaintiff they cost the plaintiff more than the award of costs which is sought.   No doubt they also cost the defendants a significant sum.  Careful thought needs to be given to the effectiveness of interlocutory arguments in relation to matters as fundamental  as  discovery.    Both  sides,  it  seems,  took  positions  in  relation  to discovery from which they ultimately resiled. A more cooperative approach, focused on ensuring that litigation is conducted in a cost effective and prompt manner, may have avoided the necessity for a significant amount of expenditure by both the plaintiff and the defendants.  This comment might be seen to be equally applicable to the stance the parties have taken in relation to resolving their differences on the costs of this application.

[14]     I award to the plaintiff costs as sought, on a 2B basis together with the filing fee on the application.

J G Matthews

Associate Judge

Solicitors:

Anthony Harper, Christchurch. DLA Piper, Auckland.