Fletcher v Lawlink Group Limited - [2022] NZHC 381

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2021-470-000071

[2022] NZHC 381

BETWEEN
DARRYL JOHN FLETCHER

Plaintiff

AND

THE LAWLINK GROUP LIMITED

First Defendant

AND

RESOLUTION LIFE AUSTRALASIA LIMITED

Second Defendant

Hearing: On the papers

Counsel:

T C Gunn for Plaintiff

K S Deobhakta for First Defendant D J Friar for Second Defendant

Judgment:

7 March 2022

COSTS JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 7 March 2022 pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

FLETCHER v THE LAWLINK GROUP LTD [2022] NZHC 381 [7 March 2022]

[1] In a judgment of 17 December 2021, I dismissed the second defendant’s application for summary judgment and reserved costs.1 Counsel have been unable to agree on costs. The plaintiff, Mr Fletcher, applies for costs, but not only in respect of the summary judgment application. He also seeks costs in respect of an earlier application by the second defendant to transfer the proceeding to the Auckland Registry of the High Court. That application was withdrawn at a case management conference on 21 September 2021.

[2]The second defendant opposes costs in respect of both matters.

[3]The first defendant has taken no active role in either matter.

The application to transfer proceedings

[4] Both defendants have their principal offices of business in Auckland. Mr Fletcher chose to file in the Tauranga High Court and relied upon r 5.1(2) and (3) of the High Court Rules 2016. He filed an affidavit of 18 June 2021 with reasons for his election.

[5] The second defendant did not accept the proceeding was properly commenced in Tauranga and, when filing its statement of defence, applied for the proceeding to be transferred to Auckland.

[6] Mr Fletcher filed a notice of opposition to that application on 13 August 2021, asserting Tauranga was the appropriate registry and that the transfer of the proceeding to Auckland would cause disproportionate inconvenience to him. The notice of opposition referred to an affidavit of Mr Fletcher to be filed. It was not filed until 16 September 2021.

[7] At a case management conference on 21 September 2021, the second defendant advised the Court the application would no longer be pursued and it was withdrawn.

1 Fletcher v The Lawlink Group Ltd [2021] NZHC 3543.

[8] Mr Fletcher argues he was successful on the application and it was only withdrawn after he had taken steps to defend it. He contends costs should follow the event in the ordinary course.2 However, Mr Fletcher also argues he is entitled to increased, or even indemnity costs.3 He relies on two factors:

(a)His lawyers had written to the second defendant’s lawyers, raising the convenience issue on 11 August 2021, prior to the filing of his notice of opposition.

(b)When serving the transfer application, the second defendant’s lawyers had raised the issue of security for costs, which Mr Fletcher infers was an attempt to intimidate him.

[9] The second defendant…

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.

Continue reading Fletcher v Lawlink Group Limited

Details

AGLC: Fletcher v Lawlink Group Limited [2022] NZHC 381
Case: [2022] NZHC 381
Decision Date: 7 March 2022

CaseChat Overview and Summary

The matter of Fletcher v Lawlink Group Limited in the High Court of New Zealand concerns a dispute between the plaintiff, Darryl John Fletcher, and the second defendant, Resolution Life Australasia Limited. The case revolves around the costs incurred in two separate applications: the application to transfer the proceedings to the Auckland Registry of the High Court, and the application for summary judgment. The first defendant, The Lawlink Group Limited, did not take an active role in either matter. The plaintiff seeks costs from the second defendant for both applications, while the second defendant opposes the costs.

The central legal issues addressed by the court in this case were whether the plaintiff is entitled to costs for the successful opposition of the application to transfer the proceedings, and whether the plaintiff is entitled to increased or indemnity costs for the unsuccessful summary judgment application. The court had to determine if the plaintiff's election to file the proceeding in the Tauranga High Court was sustainable, and if the second defendant's application for summary judgment was properly brought. Furthermore, the court had to assess whether any of the circumstances outlined in the High Court Rules warrant an award of increased or indemnity costs.

In the judgment, the court found that the plaintiff was successful in opposing the application to transfer the proceedings, and the second defendant had prior notice that the convenience issue would be raised. As a result, the court awarded the plaintiff costs on a scale 1A basis in the amount of $1,912 for the withdrawal of the transfer application. Regarding the summary judgment application, the court found that the usual rule of awarding costs when a defendant fails to obtain summary judgment applies. The court also found that the second defendant was entitled to proceed with the application, but must accept the costs consequences. The plaintiff was awarded costs of $7,409 on the dismissal of the summary judgment application. The court rejected the plaintiff's argument for increased or indemnity costs, as it found that the second defendant did not repeatedly fail to comply with the High Court Rules.

The final orders of the court are that the second defendant is to pay the plaintiff costs in the sum of $1,912 on the withdrawal of the application to transfer the proceedings, and in the sum of $7,409 on the dismissal of the summary judgment application.

Orders