Goodwin v Rocket Surgery Limited - [2013] NZHC 3052

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CIV 2013-454-000397 [2013] NZHC 3052

UNDER Section 145 of the Land Transfer Act 1952

BETWEEN WAYNE ERNEST GOODWIN AND MARY ELIZABETH GOODWIN Applicants

ANDROCKET SURGERY LIMITED Respondent

Hearing: By memoranda

Appearances: A C Beck for applicants
D P Robinson for respondent

Judgment: 19 November 2013

COSTS JUDGMENT OF ASSOCIATE JUDGE ABBOTT

This judgment was delivered by me on 19 November 2013 at 12pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:
Jenny Beck Law, Dunedin
Gallaway Cook Allan, Dunedin

Counsel:
Andrew Beck, Greytown

GOODWIN v ROCKET SURGERY LIMITED [2013] NZHC 3052 [19 November 2013]

[1] On 13 August 2013 the respondent obtained judgment against the applicants, declining an application for an order that caveat not lapse. As part of that judgment it was awarded costs on a scale 2B basis.

[2] The respondent has presented a schedule of the costs to which it says it is entitled in terms of the order made. The applicants have disputed the following items:

(a) The costs of preparation of the respondent’s notice of opposition;

(b)A claim for a rental car and for overnight accommodation incurred as a consequence of counsel for the respondent travelling from Dunedin to Palmerston North for the hearing; and

(c) The overall quantum of costs being claimed.

[3] The applicants had also taken issue with other aspects of the schedule, but those other matters have been determined in the judgment previously released.

[4] There is also an issue between the parties over the respondent’s inclusion of an item of correspondence sent by one of the applicants to a director of the respondent. The respondent has produced that correspondence in support of its case for the costs it is seeking. The applicants claim privilege in the correspondence, and seek an order that it be removed from the Court file. It is appropriate to deal with that issue before turning to the disputed issues on costs.

The issue over privilege

[5] Counsel for the respondent attached to one of his memoranda seeking costs correspondence passing between the applicant W E Goodwin and a director of the respondent. It is not disputed that in this correspondence Mr Goodwin invited the respondent to withdraw its claims, and referred to the adverse consequence of strongly contested litigation if it did not.

[6] Counsel for the respondent relied on statements made in the correspondence to the effect that the applicants did not feel that they were getting a fair hearing on the dispute in the Dunedin Court. Counsel invited the Court to draw from these statements an adverse inference that that view, rather than the respondent’s place of residence, was the reason for the applicants bringing this application in this Court.

[7] The correspondence was headed “Without prejudice”. Counsel for the applicants submitted that it was written with a view to settlement and, accordingly, attracted privilege. The applicants ask that it be removed from the Court file.

[8] The respondent…

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 Goodwin v Rocket Surgery Limited

Details

AGLC: Goodwin v Rocket Surgery Limited [2013] NZHC 3052
Case: [2013] NZHC 3052
Decision Date: 19 November 2013

CaseChat Overview and Summary

Goodwin v Rocket Surgery Limited was a case heard by Associate Judge Abbott in the High Court of New Zealand, where Wayne Ernest Goodwin and Mary Elizabeth Goodwin sought to challenge the costs awarded to Rocket Surgery Limited following a previous judgment. The primary legal issues addressed were whether certain costs claimed by Rocket Surgery Limited were justified, including the preparation costs for their notice of opposition, travel expenses for their counsel, and the overall quantum of the costs claimed. The court was also required to decide whether certain "without prejudice" correspondence, which the Goodwins claimed was privileged, should be excluded from the court file.

The court ruled that the "without prejudice" correspondence was indeed privileged and ordered it to be removed from the court file, though it noted that the privilege could be waived if the exception to privilege applied in another context. Regarding the costs, the court found that the preparation time for the notice of opposition was reasonable given the complexity and history of the case, and the travel expenses for counsel were justified due to the urgency and the need for familiarity with the case. The overall quantum of costs claimed by Rocket Surgery Limited was deemed reasonable, and the court saw no basis to reduce the claimed fees.

In summary, the court upheld the costs claimed by Rocket Surgery Limited and ordered the removal of the privileged correspondence from the court file. Both parties having had some success in their claims, the court made no order as to the costs of this proceeding.

Orders