Holder v Maulder Builders Limited

[2025] NZHC 1501

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2023-441-057 [2025] NZHC 1501

UNDER

the Contract and Commercial Law Act 2017 and the Fair Trading Act 1986

IN THE MATTER

of a claim for breach of contract, misrepresentation, and repudiation

BETWEEN

MATTHEW PETER HOLDER, KAREN MARY SOLARI-HOLDER AND HAWKE’S BAY LEGAL TRUSTEES LIMITED

Plaintiffs

AND

MAULDER BUILDERS LIMITED

Defendant

Hearing:	On the papers
Counsel:	M B Lawson for Plaintiffs K A Badcock for Defendant
Judgment:	10 June 2025

JUDGMENT OF GRICE J

(Costs)

[1]    A settlement agreement had been reached between the parties which provided that the plaintiffs would discontinue the proceedings with no issue as to costs. The notice of discontinuance was to be filed no later than 6 December 2024 according to that agreement. The notice of discontinuance was not filed by that date.

[2]    McHerron J struck out these proceedings by minute dated 7 April 2025 on the defendant’s application. He directed that the defendant file a memorandum as to costs

HOLDER v MAULDER BUILDERS LTD (COSTS) [2025] NZHC 1501 [10 June 2025]

by 24 April 2025 and any response by the plaintiffs was to be filed by 8 May 2025. The matter was to be determined on the papers.

[3]    The defendant filed a costs memorandum of 23 April 2025. It indicates that on the basis of 2B scale costs, the total for filing the memorandum seeking the strike-out application and an appearance at the Judge’s Chambers List on 7 April 2025 would amount to $1,434. But in fact, only $1,035 was charged to the defendant for the work involved. The defendant says that it only seeks costs in relation to the extra costs incurred because of the failure of the plaintiffs to file the discontinuance as agreed.

[4]    The plaintiffs’ counsel on the 29 May 2025 filed a notice of discontinuance and a memorandum explaining that the delay in filing was due to counsel’s oversight. The plaintiffs take no issue with the defendant’s costs’ calculations.

[5]    Costs generally follow the event. In the circumstances, an appropriate award is $684 which is two thirds of the actual costs ($1,035) incurred by the defendant, together with reimbursements. Otherwise, it would be effectively an indemnity costs award. In view of the explanation by the plaintiffs’ counsel, and the fact they have not intentionally disregarded the settlement terms, I consider that award is appropriate.

[6]Costs of $684 together with reasonable disbursements are ordered.

Grice J

Solicitors:

Lawson Robinson Limited, Napier for Plaintiffs Badcock Law Limited, Napier for Defendant