Farr v Knowles - [2019] NZHC 2774

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2019-485-85

[2019] NZHC 2774

BETWEEN
GRAEME LESTER FARR

Appellant

AND

ALEX FERGUSON KNOWLES

Respondent

On the papers

Counsel: J Porter for Appellant J Haig for Respondent

Judgment:

30 October 2019

JUDGMENT OF GRICE J

(Costs)

[1] Mr Farr was successful in his appeal against the entry of summary judgment against him in the District Court.1

[2] The appeal succeeded in a large part because Mr Farr was able to produce some email evidence dating back to 2010, which he had not been able to retrieve from his computer in time for the summary judgment hearing in the District Court. He said the difficulties encountered in retrieving this evidence were due to the fact that the claim by Mr Knowles had, due to procedural defects, not been properly pursued until May 2018, more than six years after the events giving rise to the proceedings.

[3]The evidence was adduced pursuant to leave granted in the appeal.

1 Farr v Knowles [2019] NZHC 2474.

FARR v KNOWLES [2019] NZHC 2774 [30 October 2019]

[4] The proceedings were remitted back to the District Court for hearing on the ordinary proceedings track.2

[5] Mr Farr now applies for costs as the successful appellant. He also applies for increased costs and indemnity costs as well as costs in relation to the District Court proceedings.

[6] The basis for Mr Farr’s application for increased or indemnity costs is that he put Mr Knowles on notice that if the summary judgment was unsuccessful that Mr Farr would be seeking to recover costs on a solicitor/client basis. In addition, Mr Farr says that the reason he had to make the application to adduce the relevant documentary material was that Mr Knowles, who had had an obligation to put that material before the District Court, had failed to do so.

[7] Mr Knowles opposes the costs application. He says that the successful argument raised by Mr Farr in the High Court was not squarely before the District Court and that the adducing of the late evidence was an indulgence that should not attract costs. He also says the affidavit in support of the application to admit the evidence was filed only five days before the hearing and there was no proper explanation as to why the new emails were not available prior to or at the time of the summary judgment hearing.

[8] Mr Knowles also notes there was no calderbank offer made in the letter from Mr Farr’s lawyer to Mr Knowles’ lawyer which Mr Farr points to as support for his contention that Mr Knowles was notice that costs would be sought on a solicitor/client basis if the summary judgment was unsuccessful.

Analysis

[9] The starting point is that the party who fails in a proceeding or an interlocutory application should pay costs to the party who succeeds.3 An award of costs should reflect the complexity and significance of…

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.

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Details

Case: [2019] NZHC 2774
Decision Date: 30 October 2019

CaseChat Overview and Summary

In the High Court of New Zealand, Graeme Lester Farr, the appellant, sought to appeal the entry of summary judgment against him by Alex Ferguson Knowles, the respondent. The matter was initially heard in the District Court, where the appellant's appeal was unsuccessful. Farr subsequently appealed to the High Court, arguing that the summary judgment was improperly entered due to procedural defects that delayed the pursuit of Knowles' claim until May 2018. The High Court allowed the appeal, finding that the procedural delays justified the late production of email evidence, which ultimately led to the reversal of the summary judgment.

The legal issues before the court centered on whether the appellant's appeal should be allowed, particularly in light of the late production of email evidence, and whether the appellant was entitled to costs on a solicitor/client basis. The court also needed to determine whether the costs incurred during the District Court proceedings should be awarded to the appellant.

The court found that the evidence presented by the appellant, which was not available at the time of the District Court hearing, was crucial to demonstrating that the summary judgment was improperly entered. The court accepted that the procedural delays were beyond the appellant's control and allowed the late evidence to be presented. Although some grounds of appeal were unsuccessful, the court found that the successful grounds for appeal were within the notice of appeal and that the evidence changed the nature of the appeal. The court also noted that the appellant had not provided any settlement proposals or Calderbank offers to the respondent. While the respondent argued that the appellant's arguments evolved during the appeal, the court found this to be a common occurrence and did not see it as a reason to reduce the costs.

The court concluded that the successful party in the appeal, the appellant, was entitled to costs on the usual basis, in line with category 2B under the High Court Rules 2016. The court found no reason to award costs on a solicitor/client basis or to reduce the costs further. Therefore, the court awarded the appellant costs based on category 2B, along with reasonable disbursements as claimed, excluding security for costs.

Orders