Global Integrated Solutions Limited v Waite HC Auckland CIV-2011-404-001606

[2011] NZHC 1660

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-001606

BETWEEN  GLOBAL INTEGRATED SOLUTIONS LIMITED

First Plaintiff

ANDINTEGRATED TECHNOLOGY SOLUTIONS LIMITED

Second Plaintiff

ANDRUSSELL NEIL WAITE Defendant

Hearing:         (On the papers)

Judgment:      9 November 2011 at 3:30 PM

COSTS JUDGMENT OF VENNING J

This judgment was delivered by me on 9 November 2011 at 3.30 pm, pursuant to Rule 11.5 of the

High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Anthony Harper Lawyers, Christchurch (R G Smedley) Lance Pratley Law, Wellington (L Pratley)

Copy to:            P D McKenzie QC, Wellington

GLOBAL INTEGRATED SOLUTIONS LIMITED V WAITE HC AK CIV-2011-404-001606 9 November 2011

[1]      The Registrar has referred this file to me to determine the issue of costs.

[2]      The plaintiffs issued these proceedings on 21 March 2011 seeking an interim injunction restraining the defendant from making defamatory statements about them.

[3]      The  application  was  opposed.    A  notice  of  opposition  and  affidavit  in opposition were filed.  On the basis of an undertaking provided by the defendant in the interim the application for injunction was adjourned for fixture on 14 July 2011. On 21 June 2011 counsel filed a joint memorandum confirming the basis upon which the matter could be resolved by consent orders.  The orders were generally consistent with those sought in the statement of claim.

[4]      The parties also agreed that:

The issue of costs of and incidental to the application shall be determined by the Court after considering memoranda to be filed by the parties. ...

[5]      The parties have been unable to agree costs and have exchanged memoranda. The plaintiffs seek costs on a 2B basis for all steps taken in the proceeding.  The plaintiffs also seek leave to discontinue the proceedings as the interim injunction effectively resolves the matter.

[6]      The  defendant  submits  that  costs  should  lie  where  they  fall  in  the proceedings, but that if the Court was to award costs such costs should be limited to those strictly relating to the application for interim injunction.  The defendant says the plaintiffs should not have costs for bringing the proceedings generally.

[7]      I have reviewed the file and counsels’ memoranda.

[8]      Although costs on a discontinuance are normally ordered in favour of the defendant:  r 15.23, this case is an exception to that rule.  The plaintiffs are acting responsibly in seeking to discontinue the proceedings rather than leave them lying fallow in the Registry.  The reality is that the issues between the parties have been resolved by the injunction order that has been made.   Such is often the case in applications for interim injunctions.

[9]      The plaintiffs have effectively been  successful.   They have achieved  the outcome they sought in issuing the proceedings.

[10]     There is a degree of history between the parties covered in the memoranda, which it is unnecessary to go into in detail for the purposes of costs.

[11]     Importantly,  prior  to  issuing the  proceedings  the plaintiffs  sought  formal undertakings from the defendant which may have avoided the issue of the proceedings.  The defendant responded through his solicitor.  While he accepted he had had a discussion with an employee of the Palmerston North City Council and Frogparking and later an employee of the Wellington City Council he said that no particulars were given in the course of the discussions that could be regarded as defamatory of the plaintiffs.   The solicitor advised that the defendant had had it impressed upon him that care was required in relation to further conversations.

[12]     The defendant’s response, through his solicitor, fell well short of providing the undertakings sought by the plaintiffs.  The plaintiffs were, in the circumstances, justified in issuing proceedings to seek orders from the Court.

[13]     Although Mr McKenzie QC refers to separate proceedings brought by Mr and Mrs Waite against the first plaintiff and comments made by Associate Judge Faire on an application for security for costs in those proceedings, they are not directly relevant to the particular issues in these proceedings which have now been resolved.  I am satisfied that in this case the plaintiffs should have costs.

[14]     That leaves the final issue of quantum.  The plaintiffs’ claim includes a claim for the commencement of the proceedings by statement of claim.  Mr McKenzie QC submits the plaintiffs are not entitled to costs in relation to the statement of claim as the costs order contemplated that only costs in relation to the application for interim injunction itself would be awarded.

[15]     I am unable to accept that submission.  The statement of claim was required to be filed to provide a basis for the application for interim injunction in this case. The  order  contemplated  costs  of  and  incidental  to  the  application  for  interim

injunction. At the very least the commencement of the proceedings was incidental to the application for the interim injunction.

[16]     On the issue of quantum generally,  I also note that on 9 May 2011  the plaintiffs offered to settle the issue of costs in these proceedings with the defendant in the sum of $3,057.33, an offer that was rejected.   In some circumstances that would have justified an increased award:  r 14.6(3)(b)(v).

[17]     In summary, apart from the plaintiffs’ application for costs on the memoranda in relation to costs I approve the plaintiffs’ calculation.  While appropriate in some case I do not consider costs on the memoranda to be appropriate in this case.

Result

[18]     The plaintiffs are to have costs against the defendant calculated on a 2B basis, namely $8,084.00 together with disbursements of $1,737.77.

Venning J