Gladvale Farms Limited v Munro

[2016] NZHC 175

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CIV-2014-425-000017 [2016] NZHC 175

BETWEEN

GLADVALE FARMS LIMITED

Plaintiff

AND

GLENNIS DOROTHY MUNRO AND

C M LAW TRUSTEES (2011) LIMITED AS TRUSTEES OF THE HILLPOINT FAMILY TRUST

First Defendants

GLENNIS DOROTHY MUNRO AND KIRK DONALD SCOTT MUNRO AS TRUSTEES OF THE HILLPOINT FAMILY TRUST

Second Defendants

GEOFFREY JOHN LINDSAY Third Party

Hearing:	(Dealt with on the papers)
Counsel:	N Till QC and J E Bailey for Plaintiff and Third Party J R Billington QC and D Hughes for Defendants
Judgment:	16 February 2016

JUDGMENT OF GENDALL

[1]      Before the Court is an application by the defendants for what are described as “wasted costs” consequent upon the adjournment of a trial of this matter at the request of the plaintiff. That trial was scheduled to take place on 2 November 2015.

[2]      Detailed  memoranda  of  submissions  have  been  filed  on  behalf  of  the defendants in support of this costs application and on behalf of the plaintiff and the

third party opposing any such award.

GLADVALE FARMS LIMITED v MUNRO [2016] NZHC 175 [16 February 2016]

[3]      This matter was originally set down for trial for two weeks commencing in the Invercargill High Court on 2 November 2015.

[4]      On 20 October 2015 an order was made in this Court by minute adjourning the trial, initially, to a new date of 2 February 2016.   The minute issued on 20

October 2015 also made provision for the defendants to bring an application they had signalled for wasted costs with respect to the adjournment.

[5]      The total costs and disbursements now sought by the defendants, which they say are “wasted”, are as follows:

(a)      The  sum  of  $49,316.60  representing  indemnity  costs  incurred  in respect of:

(i)       Costs on the application for adjournment itself; and

(ii)      Wasted trial preparation costs.

(b)The sum of $5850 representing what is said to be “wasted” expert costs/disbursements.

[6]      The reasons advanced by the plaintiff for the adjournment of the trial are strongly disputed.   What does seem clear to me is that, broadly speaking, these include the following:

(a)      The need for the plaintiff and third party to change their instructed counsel  in  this  case  because  of  an  “inadvertent”  disclosure  by previous counsel of certain diaries sent to the plaintiff which were only intended to be inspected on a counsel-to-counsel basis.

(b)A suggestion now that the two weeks scheduled for trial was in any event inadequate, and that three weeks was a more appropriate estimate.

(c)       A suggestion that late disclosure by the defendants of diaries and photographs meant that the adjournment of the trial was necessary.

[7]      Leaving all these matters on one side, however, I am of the view that if indeed there are wasted costs which have been incurred here on the part of the defendants they are not significant.  Costs involved in preparation for trial would, of course, be properly incurred in the sense that whatever the final trial date, that trial preparation is entirely useful and in any event would have been necessary.

[8]      That argument seems to me to apply also with respect to what are claimed to be “wasted” experts’ costs here.   If experts are required to give evidence in this proceeding then any matters concerning their reports and preparation for trial would be required whatever final trial date is fixed.

[9]      Next, complaints over the delay in bringing this dispute to trial, and the impact upon operation of the farm in question over the delayed period, are matters that can clearly be dealt with when any question is addressed at trial as to the extent of damages (if appropriate).

[10]     Finally, at most, the defendants, in my view, are entitled here only to minimal costs on the application for adjournment itself and matters relating directly to that adjournment discussion given that generally, at most, the decision to grant an adjournment could simply be seen as an indulgence granted to the plaintiff.

[11]     On that adjournment application, before me counsel for the defendants has provided a category 2B calculation relating to the application for adjournment.  This is contained in Schedule A of counsel’s memorandum dated 17 November 2015. Category 2B is appropriate and totals $5240.50.  The calculation of this quantum is not the subject of any real dispute on the part of the plaintiff or third party.

[12]     Although counsel for the plaintiff and third party does dispute the contention that the adjournment was granted as an indulgence to the plaintiff, in my view it must be seen overall as an indulgence and, accordingly, the defendant is entitled to a

contribution, which I set at 50%, to its costs with respect to the argument relating to that adjournment application itself.

[13]     The defendant’s present costs application therefore succeeds in part.  I order that the plaintiff and the third party are now jointly and severally to pay to the defendants the sum of $2620.25 representing 50% of the category 2B scale costs on the adjournment application itself.

[14]     In  other  respects  the  claim  by the defendants  at  this  point  for what  are

described as “wasted costs” fails.

...................................................

Gendall J

Solicitors:

Rhodes & Co, Christchurch

Anthony Harper, Auckland