Grant v Colorado Intrinsics no.2 Limited

[2024] NZHC 1196

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-1573

[2024] NZHC 1196

IN THE MATTER

of an appeal

BETWEEN

TOBIAS ANTHONY JOHN GRANT

Appellant

AND

COLORADO INTRINSICS NO.2 LIMITED

Respondent

Hearing:

On the papers

Counsel:

D J G Cox for Appellant

B P Molloy and C A Wooller for Respondent

Judgment:

14 May 2024

COSTS JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 14 May 2024 at 4 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date: ...................................

Solicitors:           Rennie Cox, Auckland

Haigh Lyon, Auckland

GRANT v COLORADO INTRINSICS NO.2 LTD [2024] NZHC 1196 [14 May 2024]

Introduction

[1]                 On 18 March 2024, I allowed an appeal by the appellant, Mr Grant, against a decision of Judge D Clark in the District Court at Auckland. The Judge had declined to set aside a default judgment against Mr Grant, obtained by the respondent, Colorado Intrinsics No.2 Ltd (“Colorado”).1

[2]                 Mr Grant now seeks costs on the grounds that he succeeded on appeal, which he did. Colorado opposes any award and submits that costs should lie where they fall. This latter submission is consistent with the preliminary view I expressed in the judgment, as I had allowed Mr Grant’s appeal on a ground that he had not identified in his notice of appeal.

Background

[3]                 Colorado obtained a judgment by default against Mr Grant and his fellow director and respondent, Mr Lattimer-Gregory, in May 2021. In May 2022, Mr Grant and Mr Lattimer-Gregory applied to set aside the default judgment. Several grounds on which they did so were common to them both, although Mr Lattimer-Gregory had one unique to him. The Judge considered that unique ground alone had merit.

[4]                 The Judge declined Mr Grant’s application to set aside on the basis the defences he wished to advance were not reasonably open to him. However, the Judge allowed Mr Lattimer-Gregory’s application without restriction. The upshot is that  Mr Lattimer-Gregory is now defending Colorado’s claim, both on the unique ground to which I have referred and on grounds that the Judge had said were not reasonably available, even though there is no material distinction to be drawn between Mr Grant and Mr Lattimer-Gregory on those particular grounds.

[5]                 This state of affairs raises the possibility of inconsistent verdicts, in that it is conceivable that Mr Lattimer-Gregory will succeed in defending the proceeding on a ground that the Judge determined was not reasonably arguable.

1      Grant v Camelspace (AKL) Ltd [2024] NZHC 572. The respondent has since changed its name to Colorado Intrinsics No.2 Ltd.

[6]                 In his notice of appeal, Mr Grant challenged the merits of the Judge’s decision but did not identify the potential for inconsistent outcomes as a ground of appeal. Rather, I raised the point; received further submissions from counsel; and ultimately allowed Mr Grant’s appeal on this ground. This in turn made it unnecessary for me to address Mr Grant’s other grounds of appeal.

Costs on appeal

[7]                 Costs are at the discretion of the Court but a general principle which applies is that the party who fails with respect to a proceeding (which includes an appeal) should pay costs to the party who succeeds.2

[8]                 This general principle is subject to High Court Rules 2016, r 14.7(d) which permits the Court to refuse an order for costs or to reduce the costs otherwise payable if, amongst other things, the party claiming costs has failed on an issue which significantly increased the costs of the party opposing costs.

Analysis

[9]                 Given the general principle, the starting point is Mr Grant, as the successful party, is entitled to an award of costs and disbursements. The quantum of those is

$11,711 in costs and $540 in disbursements.

[10]             The question then arises as to whether there is any basis to deny or reduce those costs, and I do not consider there is.

[11]             I take Colorado’s point that Mr Grant did not succeed on any of the grounds of appeal that he identified but nor did he fail on  any of those grounds in the sense of   r 14.7(d). Rather, it was unnecessary for me to determine the grounds he relied upon. In those circumstances, the case falls outside the r 14.7(d), and there is no basis on which to decline or reduce the costs and disbursements that are claimed.

2      High Court Rules 2016, r 14.2(1)(a).

Orders

[12]             I order Colorado Intrinsics No.2 Ltd to pay Mr Grant the sum of $11,711 for costs and $540 for disbursements on this appeal.

Peters J