First Gas Limited v Gibbs

[2022] NZHC 2340

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CIV-2021-443-16

[2022] NZHC 2340

BETWEEN

FIRST GAS LIMITED

Plaintiff

AND

RUSSELL VICTOR GIBBS, PARANI JOSEPHINE GIBBS and TE AHURU TRUSTEE COMPANY

LIMITED as trustees of the R V & P J Gibbs Family Trust

Defendants

Hearing:	On the papers
Appearances:	L Wallace and H A Froude for Plaintiff R Gibbs in person
Judgment:	13 September 2022

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

[Costs]

[1]                 In a judgment dated 4 August 2022 I declined the defendants’ application for an order staying execution of Grice J’s judgment dated 3 December 2021.

[2]                 The successful party, the plaintiff, First Gas Ltd, now seeks costs. It does so on a 2B basis. Ms Wallace’s calculation of costs on this basis appears correct. The total claim (inclusive of a $50 disbursement in respect of sealing fees) is $18,214.

[3]                 No suggestion is made on behalf of the plaintiff that there ought to be an uplift of costs at all.

FIRST GAS LIMITED v GIBBS [2022] NZHC 2340 [13 September 2022]

[4]The defendants resist any costs order.

[5]                 The first section of the defendants’ memorandum is devoted to clarifying what Mr Gibbs obviously perceives to be some confusion about the nature of the proceeding. I am not sure that it is necessary for the Court to address that aspect of his memorandum. It is enough to say that it is not evident to me that there is any need for such clarification.

[6]                 The defendants criticise the plaintiff for not putting in certain evidence. But of course, the plaintiff was advancing its case on the basis that it regarded as appropriate. To the extent that there is any suggestion that the plaintiff was acting improperly by not putting in any particular documentation I do not accept that.

[7]                 The defendants remind the Court that there is a discretion to decline to award costs, which of course I accept.

[8]                 However, the starting point is set out in r 14.8 of the High Court Rules. Generally, the Court must deal with costs in interlocutory matters when they are completed.

[9]                 Having said that, it should be acknowledged that the defendants have appealed and their appeal is set down to be heard in October. The Court of Appeal has also given them leave to file further evidence.

[10]             I see no reason why the plaintiff should not have its costs on a 2B basis. However, all things considered, it seems to me that substantial justice will be done in this case if I fix costs in the plaintiff’s favour against the defendants but stay the execution of the costs order until the defendants’ appeal is dealt with. Apart from anything else, that will mean that the Court of Appeal is fully appraised of the outcome in this Court.

[11]             I therefore make a costs award in favour of the plaintiff in the sum of $18,214 (inclusive of disbursements), but stay execution of that order pending the outcome of

the defendants’ appeal or any order of this Court in relation to costs.

Associate Judge Johnston

Solicitors:
Govatt Quilliam, New Plymouth for Plaintiff