Houston v Attorney-General
[2015] NZHC 2298
•22 September 2015
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2008-485-002689 [2015] NZHC 2298
BETWEEN MATILDA ISABELLE HOUSTON
Plaintiff
AND
THE ATTORNEY-GENERAL First Defendant
THE CHIEF EXECUTIVE OF LAND INFORMATION NEW ZEALAND Second Defendant
NEW ZEALAND TRANSPORT AGENCY
Third Defendant
CIV-2011-485-000633
BETWEEN BRADLEY S BUILDINGS LIMITED (IN LIQUIDATION)
Plaintiff
ANDTHE ATTORNEY-GENERAL First Defendant
THE CHIEF EXECUTIVE OF LAND INFORMATION NEW ZEALAND Second Defendant
NEW ZEALAND TRANSPORT AGENCY
Third Defendant
CIV-2011-485-000701
BETWEEN HOWARD CHRISTOPHER SMITH Plaintiff
ANDTHE ATTORNEY-GENERAL First Defendant
THE CHIEF EXECUTIVE OF LAND INFORMATION NEW ZEALAND
HOUSTON v ATTORNEY-GENERAL [2015] NZHC 2298 [22 September 2015]
Second Defendant
NEW ZEALAND TRANSPORT AGENCY
Third Defendant
Hearing: Dealt with on the papers Judgment:
22 September 2015
JUDGMENT OF GENDALL J (As to costs)
[1] The defendants apply for costs following the discontinuance of these proceedings by the plaintiffs. The plaintiffs say that they should not have to pay costs, or at least should only have to pay costs on a greatly reduced basis because the defendants were guilty of extensive delay in disclosing documents to the plaintiffs which they say should have been disclosed much earlier in the case. The plaintiffs say that if they had received those documents when they should have been disclosed they would have appreciated then that their claims could not succeed.
[2] These files and the submissions from counsel have only recently been referred from Wellington to me in Christchurch (where I now sit) for consideration of this costs issue. I regret therefore the delay in this costs decision being provided to the parties.
[3] In their various proceedings, the plaintiffs sought declaratory relief in respect of the taking of certain parcels of land in Wellington (the subject lands) under the Public Works Act 1928. While the subject lands were taken by the Crown on various dates between 1965 and 1971 “for better utilisation”, the defendants acknowledged in their statements of defence that the principal purpose of the acquisitions was in connection with the construction of a motorway from Ngauranga to the Basin Reserve (the project).
[4] In their consolidated statement of claim the plaintiffs contended that the third defendant (or its predecessor Transit New Zealand) (Transit) knew as early as July
1984 (or if not, by no later than June 2003) that no part of the subject lands, which had been acquired from them or from parties to whom they are successors, would be required for the project. In those circumstances, they allege that the second defendant was obliged by s 40(2) of the Public Works Act 1981 (the Act) to offer to sell the land back to the plaintiffs. They asked for declarations that the defendants were required to offer the land for sale to them at prices to be fixed as at one of a number of alternative dates (the date adopted would depend on when the Court considered an offer should have been made to sell the land to the plaintiffs ).
[5] There were initially three separate proceedings. Proceeding CIV-2008-485-
2689 (the Houston proceeding) was commenced in December 2008. The other two proceedings (the Bradley proceeding and the Smith proceeding) were commenced in April 2001. The three proceedings were consolidated in April 2011, and a consolidated amended statement of claim was then filed.
[6] These consolidated proceedings were discontinued on 8 November 2011. In a minute I issued then I recorded that the parties would endeavour to resolve costs issues. If they could not, leave was granted for them to file memoranda on costs. It seems the parties have spent several years endeavouring to resolve the costs issue but have been unable to do so. Memoranda have now been filed and I now give my judgment on the defendants’ claim for costs.
Background
[7] The subject lands, it seems, were all originally subject to a designation for the project.
1981 – 1982 – the revised designation
[8] In October 1981, the National Roads Board (the NRB), considered Submission 7002, which outlined a proposal to construct the project in three stages. This submission included a revised designation for the proposed arterial route which would allow the designated motorway corridor to be reduced significantly. Stages 2
and 3 of the project, with which I am primarily concerned, were respectively the
Inner City Bypass, and the proposed motorway.
[9] The NRB accepted Submission 7002 in principal, and requested a further report on the staging of the project and the costs/benefits of each stage. It requested the Minister to amend the requirement for the motorway within the Wellington City Council (WCC) District Planning Scheme.
[10] Having received a further report on the staging of the project, the NRB on
18 July 1984 resolved to accept the staging recommendations made for planning purposes, but without any commitment for the future programming of the works.
[11] The plaintiffs contended in their consolidated statement of claim that a map attached to Submission 7002, showing the proposed revised designation, did not include or affect the subject lands. They alleged that in accepting the staging recommendations in July 1984 the NRB accepted the revised designation shown on the map attached to Submission 7002. They contended that the omission of the subject lands from the scope of the revised designation provided evidence that the subject lands were no longer required for the public work for which they had been acquired.
[12] That contention was effectively rebutted by the defendants in May 2011. In statements of defence respectively dated 25 May 2011 (third defendant) and 27 May
2011 (first and second defendants) the defendants referred to amended Ministerial Requirements that were sent to WCC on 20 November 1981. They contended that the effect of the amended Ministerial Requirements was that, although the area subject to the designation was reduced, the subject lands remained within the designated area. Documents supporting that position were disclosed for the first time, in a (third) discovery list filed by the third defendant on 24 June 2011.
[13] The plaintiffs accept that the 20 November 1981 amended Ministerial Requirements left the land with which the Houston and Bradley proceedings were concerned within the area affected by the designation. They say that further amendments to the Ministerial Requirements were made in or about March 1982,
and these amendments brought the land with which the Smith proceeding was concerned within the area to which the designation applied.
[14] The plaintiffs say that the effect of these documents, which they claim not to have seen until July 2011, was to make it clear that in 1981/1982 the subject lands were clearly designated for the project. They say that their claim had depended on the subject lands being excluded from the designation at or about this time, and that their misconception in that respect arose because of the earlier unavailability of the crucial November 1981 and March 1982 documents.
1996 – 1997 – notice of requirement for stage 2 of the project and the uplifting of the designation for stage 3
[15] In 1996 Transit lodged a Notice of Requirement under the Resource Management Act 1991, seeking to designate land for stage 2 of the project. The Notice of Requirement was considered by Hearing Commissioners in September
1996, and the Commissioners recommended that Transit confirm the designation for stage 2, but limit the physical extent of the designation as far as reasonably practical for the construction of that stage. Transit amended its drawing of the designation in accordance with the recommendation of the Hearing Commissioners, and sent an amended drawing to WCC on 27 January 1997. The 1996 requirement and the amended drawing sent to WCC on 27 January 1997 were concerned only with stage
2 of the project. On 5 February 1997, when Transit’s board resolved to confirm the designation for stage 2, it also resolved to withdraw the designation for stage 3. It resolved to retain all land currently held by it, pending a final resolution on stage 2 and a review of the need for any further improvements after stage 2 was completed.
[16] It is common ground that the subject lands were within the area which had been designated for the proposed motorway, i.e. stage 3 of the project. And the plaintiffs say they took the view that Transit’s decision to uplift the designation for stage 3 was further evidence that the subject lands were no longer required for the public work for which they had been acquired.
[17] Again, the plaintiffs’ understanding of the situation proved to be incorrect. In their May 2001 statements of defence the defendants pleaded (for the first time) that
at the same time it lodged the requirement in respect of stage 2 (April 1996), Transit also lodged an amended Notice of Requirement seeking to amend the existing stage 3 designation. The amended Notice of Requirement made minor adjustments to the boundaries of the land designated for the motorway and sought an extension of time for the designation.
[18] This amended Notice of Requirement was also considered by the Hearing Commissioners at the September 1996 hearing. The Hearing Commissioners recommended that the designation for stage 3 of the project be withdrawn, but the defendants say that they did so on the basis that the stage 3 designation was not needed, as Transit already owned almost all the properties within the motorway designation, and was therefore able to control what work could be carried out on those properties.
[19] The 1996 amended Notice of Requirement relating to stage 3 was included in the third defendant’s June 2011 discovery list. The plaintiffs say they were not aware of it before then. They accept that the document indicated that Transit’s intention in 1996 was the that stage 3 work would eventually be undertaken, and that it therefore went to the issue of whether the stage 3 land (including the subject lands) were still “required” for the motorway.
[20] In their consolidated claim, the plaintiffs had nominated four alternative dates on which the obligation to offer the subject lands to the plaintiffs arose. In addition to the July 1984 date, the plaintiffs nominated 5 February 1997 (when Transit’s Board decided to confirm the stage 2 designation), 30 April 1999 (when Transit formally notified its Notice of Requirement to WCC), and 27 July 2000 (when WCC’s District Plan incorporating the stage 2 designation became operative).
[21] In their costs submissions, the plaintiffs maintain that the discovery of the April 1996 amended Notice of Requirement relating to stage 3 effectively ruled out their claims based on the 1997, 1999, and 2000 offer back dates – all of those dates were based on the notion that in 1996 Transit had “all but decided” not to proceed with stage 3, and that it later took formal steps which were consistent with that position.
[22] The plaintiffs say that they would not have continued with the Houston proceeding, or commenced the Bradley or Smith proceedings, had they been aware of the documents provided to them in July 2011 at an earlier stage. They say that the belatedly produced documents effectively disproved their case on the facts, as they refuted the plaintiffs’ case that the subject lands fell outside the designations at the relevant dates.
Claims for costs on a discontinuance – general principles
[23] Rule 15.23 of the High Court Rules provides:
15.23 Costs
Unless the defendant otherwise agrees or the court otherwise orders, a plaintiff who discontinues a proceeding against a defendant must pay costs to the defendant of and incidental to the proceeding up to and including the discontinuance.
[24] The rule creates a presumption that a plaintiff who discontinues must pay costs to the defendant. That presumption may be displaced if the Court considers that it would be just and equitable in the circumstances not to apply it1 but the Court
will not lightly allow a plaintiff to displace the presumption.2
[25] As a general rule, when considering costs in discontinued proceedings, the merits of the competing contentions in the proceedings will not be considered unless the merits are so obvious that they should influence the award of costs.3
[26] In Powell v Hally Labels Ltd the Court of Appeal observed that the Court’s reluctance to embark on enquiries into merits or conduct reflects the objectives of the rules, which allow a plaintiff by discontinuance to end its proceeding unilaterally and fix its liability for costs at that point, and further contemplates that the liability should be predictable and the quantum readily calculable. To conduct a post- discontinuance enquiry into the merits or the reasonableness of the parties’ conduct
will ordinarily be contrary to those objectives.4
1 Kroma Colour Prints v Tridonicato NZ Ltd [2008] NZCA 150 at [12].
2 Powell v Hally Labels Ltd [2014] NZCA 572.
3 North Shore City Council v Local Government Commission [1995] 9 PRNZ 182 (HC).
4 Above n 2 at [24].
[27] Where the application of the presumption in r 15.23 is disputed by a plaintiff, the reasonableness of steps taken in the proceedings may be considered,5 but a general enquiry into the reasonableness of the parties’ conduct will not normally be appropriate.6
Timeline of steps in the proceedings
[28] It is useful here to provide a timeline of relevant steps taken in the proceedings leading up to the eventual discontinuance in November 2011 and I now do so:
(a) December 2008 – the Houston proceeding was filed. Discovery and briefs of evidence were later provided.
(b)17 December 2009 – a direction was made that the defendants provide further and better discovery of:
(i)All documents relating to the motorway project for which the Houston land was acquired which were relevant to whether or not the land would be required for the motorway project; and
(ii) All documents relating to decisions affecting the Inner City
Bypass project, as they related to the Houston land.
(c) 19 February 2010 – further documents were provided by the second and third defendants.
(d)3 June 2010 – amended statement of claim filed in the Houston proceeding.
(e) 2 December 2010 – amended statement of defence and plaintiff’s
evidence filed in the Houston proceeding.
5 Carmel College Auckland v North Shore City Council (HC) Auckland CIV-2007-404-5894,
20 January 2009.
6 Above n 2, at [22].
(f) 15 February 2011 – Crown Law, then acting for all three defendants, sought an extension of time.
(g)11 March 2011 – Chapman Tripp advised that it had been instructed to act for the third defendant.
(h) April 2011 – the Bradley and Smith proceedings were filed.
(i) 29 April 2011 the plaintiffs’ consolidated statement of claim was filed.
(j)25 May 2011 – the third defendant filed an amended statement of defence.
(k) 27 May 2011 – the first and second defendants, still represented by
Crown Law, filed an amended statement of defence.
(l) 24 June 2011 – the third defendant filed its further discovery list.
(m) 30 June 2011 – the matter was set down to be heard on a date after
1 April 2012.
(n)September 2011 – the plaintiffs sought an adjournment of the proceedings to consider the Supreme Court decision in Mark & Ors v Attorney-General7 and the implications that decision might have for the plaintiffs’ case.
(o)November 2011 – the consolidated proceeding was discontinued by the plaintiffs.
The parties contentions
The defendants
[29] The defendants seek costs here on a category 2B scale basis. They submit that there was nothing in the circumstances of the case to suggest that the r 15.23
7 Mark & Ors v Attorney-General [2011] NZSC 94.
presumption should not apply. They seek total costs and disbursements for the first and second defendants of $19, 255.51 and for the third defendant of $30,654.88.
[30] The third defendant says that it was reasonable for it to be separately represented here. While the second defendant’s interest in the proceeding was as the decision-maker under s 40 of the Act, the third defendant had a separate interest as the landholding agency. Further, Chapman Tripp had been acting for the third defendant in the Mark & Ors proceeding, and it was considered appropriate that this firm should be instructed to act for the third defendant in these consolidated proceedings.
[31] The defendants say also that few additional costs were incurred because of the defendants’ separate representation. They estimate that only $4980 could be considered as possible duplicate costs (those costs relating to the additional proceedings and attending telephone conferences). The third defendant says it has deducted that sum from its costs claim.
[32] The defendants also accept that the sum of $2360, being the amount of a 2B costs award made on 17 December 2009 in the plaintiff’s favour in the Houston proceeding should be set off against the costs now claimed by the defendant.
The plaintiffs
[33] The plaintiffs say that this is a case in which justice requires the Court to depart from the usual principal of awarding scale costs on a discontinuance, primarily because of the defendant’s late (and material) alterations of their defences in May 2011, and the defendant’s failure to complete discovery in accordance with their obligations at an earlier stage.
[34] They deny that their decision to discontinue the proceedings was made because of the Supreme Court’s refusal in August 2011 to grant leave to appeal in the Mark & Ors case. While they asked for an extension of time in September 2011 to enable them to more fully consider the implications of that decision, they say they were still at that stage considering the ramifications of the amendments to the
defendant’s statements of defence and a substantial volume of additional documents
disclosed by the third defendant a few weeks earlier.
[35] The plaintiffs acknowledge that the refusal of leave to appeal in the Mark & Ors case was also unhelpful as the Court of Appeal had taken a broad approach on the question of whether a landholding agency continued to “require” land for a public work. They say that the decision to discontinue was taken because their litigation funder took the view that the third defendant’s amended defence, supported by the previously undiscovered documents, rendered their claim no longer viable.
[36] On the quantum of the defendants’ claim for costs, the plaintiffs contend that the defendants have provided no explanation for their failure to provide the critical documents when they should have been provided. They further submit that they should be given the benefit of the doubt on the issue on whether they would have proceeded with the claims if they had had proper disclosure at an earlier time. They submit that costs should lie where they fall in all of the proceedings or, in the alternative, costs to the defendants should be limited to $6390, covering the filing of the initial defence in the Houston proceeding, the first case management conference, and discovery.
[37] The plaintiffs further maintain that there is no basis for multiple costs awards. All defendants were represented by Crown Law at the outset, and the plaintiffs say there was no reason for separate representation of the third defendant.
[38] With their first memorandum on costs the plaintiffs provided an affidavit by Mr Laurenson, who was employed at the relevant time by the plaintiffs’ litigation funder. Mr Laurenson was responsible at the material times for liaising between the litigation funder, the plaintiffs, and their legal team. He confirmed that a draft of the plaintiffs’ costs memorandum (which appears to be identical in material respects to the memorandum as filed) correctly sets out the reason for the discontinuance, i.e. knowledge of facts acquired in July 2011 convincing the plaintiffs that their claims could not succeed.
Defendants’ reply submissions
[39] The defendants challenge the plaintiffs’ contention that the main reason for the discontinuance was the late production of documents by the third defendant. They noted that the plaintiff sought three adjournments between June 2011 and November 2011, when the proceedings were ultimately discontinued. The only explanation given to the Court for these adjournments was that the plaintiffs wanted time to consider their case in the light of the Mark & Ors decision.
[40] The defendants submitted that, by the time the plaintiffs sought the second adjournment in September 2011, they had had ample time to review the additional documents and to assess the implications of those documents for their case. The plaintiffs received the additional documents some two months earlier and those documents extended to only approximately 300 pages.
[41] The defendants further contended that the plaintiffs had always had access to the relevant information in any event. The 1981 – 1982 documents were at all times publicly available in either Archive New Zealand files or in the WCC’s archives. Both archives were accessible by the plaintiffs and they should have looked for them before commencing their proceedings.
[42] As for the 1996 amended Notice of Requirement, the defendants say that the plaintiffs did not require the actual Requirement documents to be able to determine that Transit intended to pursue stage 3 of the project. That had been made clear by the Commissioners’ decision on the amended Notice of Requirement, which was released in November 1996. That decision was a publicly available document, and the outcome was referred to in the amended statement of claim filed in the Houston proceeding in June 2010. It was also referred to in the plaintiffs’ amended consolidated statement of claim filed in April 2011.
Further submissions by plaintiffs
[43] The plaintiffs filed further submissions in response to the defendant’s reply submissions, and a further affidavit by Mr Laurenson. No objection was taken to the filing of these documents and I have taken them into account.
[44] Mr Laurenson’s further affidavit annexed a copy of an opinion dated
6 October 2011, provided by the plaintiff's junior counsel. The opinion recommended discontinuance of the proceeding, and confirmed that this recommendation was made largely on the basis of documents contained in the most recent discovery provided by the defendant.
[45] Counsel noted that her brief was limited to an evaluation of the prospects of the plaintiffs’ claim succeeding in the wake of the Mark & Ors judgment, the most recent statement of defence, and the latest tranche of the discovery.
[46] On the issue of whether the plaintiffs could have accessed the additional documents themselves, prior to the commencement of the proceedings, Mr Laurenson stated that he first took steps to obtain the Ministry of Works and Development files, relating to the acquisition of the land, through Archives New Zealand, but access to the files was restricted for privacy reasons. In support, he produced a copy of a letter dated 23 February 2007 from Archives New Zealand relating to an application for access for the then-proposed Bradley claim. A “Restricted Access” document provided with the letter from Archives New Zealand stated that access to the files containing personal information would be restricted for
70 years, and that a restriction of 50 years from the closing date of the file would apply to records containing information concerning:
(a) property purchase; or
(b) claims made on NRB by individuals.
[47] The land acquisition files for the first and third plaintiffs were eventually obtained, following authorisation provided by them, but the files disclosed did not contain documents dated after the acquisition of the land.
[48] Mr Laurenson described the task of finding information about subsequent decisions made in respect of the land (once acquired) in the Archives New Zealand system as “like looking for a needle in a haystack”. There were no obvious search terms that yielded results. Further, much of the relevant material was comparatively
recent, and would have been held by Transit and the local authority. He states that he obtained all of the relevant local authority planning documents that were available online, and relied on Official Information Act requests of Transit to obtain further material. He produced copies of his correspondence with Transit in 2005. In one of these letters, dated 14 December 2005, he requested copies of all decisions made by the Transit Board from 1997 onwards. He stated that he had no record of receiving any response to that letter.
[49] The plaintiffs also maintained that there was no want of diligence on their part in commencing these proceedings, and that they did not do so without appropriate investigation of the facts.
Discussion and my conclusions
[50] Turning first to the issue of whether there is a basis here for multiple costs awards being made to the defendants, as I have noted above, the position of the plaintiff is that no reason existed in this case for the third defendant to be separately represented by Chapman Tripp which occurred midway through these proceedings. All the defendants were originally represented by Crown Law and the plaintiffs’ position is that no valid reason existed for any of the defendants to change from this arrangement.
[51] On this aspect, I disagree, however. In my view, the defendants were entitled to separate representation. Despite this, counsel for all the defendants has also confirmed that the various counsel worked closely together to avoid duplication and reduce costs towards the planned hearing, a hearing which did not proceed. The defendants contend that few additional costs were incurred because of this separate representation. They confirm too that Chapman Tripp, who acted for the third defendant, is one of its retained legal providers and at the same time as these proceedings were progressing, Chapman Tripp were acting for the third defendant in significant proceedings, raising very similar issues, namely Mark & Ors v Attorney- General & Ors (to which I have referred earlier), a case ultimately determined by the Supreme Court.
[52] Under all the circumstances here I find that it was appropriate for the third defendant to be separately represented. In any event, as I understand the position, this would have led to minimal, if any, additional costs being incurred in this complex and long running case.
[53] Next, turning to issues of liability here, at the outset I note two matters. The first is the acknowledgment from the plaintiffs where they confirm that their litigation funder in these proceedings, S40 Limited, is to meet any award of costs and disbursements made against the plaintiffs. The second is the further acknowledgment that S40 Limited has the ability to meet any such costs and disbursements award.
[54] Turning now to r 15.23 of the High Court Rules relating to costs on a discontinuance, I note that the presumption in this rule is designed to give a certain and predictable outcome upon discontinuance, although this may be displaced if a Court finds there are circumstances which make it just and equitable that the presumption should not apply – on this see McGechan on Procedure.8 As a starting point in this case, the defendants here are entitled to an award of costs and disbursements, given the decision of the plaintiffs to discontinue their proceedings. Notwithstanding this, the position of the plaintiffs is that in two respects the circumstances in this case make it just and equitable that the presumption that the
plaintiff should pay costs will not apply here. The first is the decision by the third defendant on 25 May 2011 to file an amended defence which it is said differed significantly from the earlier defence filed on behalf of all defendants. The second is the contention advanced by the plaintiffs that their decision to discontinue was made because the additional discovery documents only provided by the third defendant in its affidavit of documents in June 2011, significantly diminished the plaintiff’s chances of successfully proving their case, and this was the first occasion on which the plaintiffs had access to these documents.
[55] In response, the defendants contend that a major, if not the sole, reason the plaintiffs discontinued their proceedings was because of the effect of the Supreme
Court’s decision in Mark & Ors v Attorney-General issued in mid 2011. They note
8 McGechan on Procedure at para HR 15.23.01.
that some months still elapsed before finally the plaintiffs discontinued their proceedings in November 2011.
[56] In my view, there is little in the plaintiff’s point regarding the decision by the third defendant in May 2011 to file an amended defence. The plaintiffs had filed a consolidated statement of claim on 29 April 2011.
[57] Addressing the issue of discovery on the part of the defendants, in my view, there can be no doubt here that a significant group of documents important to the outcome in this case was not discovered by or on behalf of the defendants until reasonably late in the piece, sometime around mid 2011. Discovery proved to be a fraught issue in this case and I accept contentions advanced for the plaintiffs that although the defendants say the discovery documents were part of public archive records and thus available on search to the plaintiffs, this did not prove easy to achieve and it does not excuse the defendant’s delay in completing proper discovery.
[58] In my view, however, that discovery delay does not provide the plaintiffs with a complete justification for the continuation of their proceedings against the defendants right up to the time of discontinuance.
[59] On balance, therefore, I find that the plaintiffs should meet the total reasonable scale costs of the defendants, less an allowance which I set at 30% as an appropriate figure for the discovery issues I have mentioned. This 30% allowance reflects unnecessary costs for a period of time incurred as a result of the defendants’ delay in making full and proper discovery to the plaintiffs, but takes into account also the plaintiffs’ own contributing fault, to some extent, in not searching all publicly available archive records at the time before finalising their various claims against the defendants. The 30% reduction is to be applied to the total category 2B costs claimed by the first and second defendants totalling $18,016 and by the third defendant totalling $26,980. As I see it, these amounts were appropriately charged for all the work involved on the part of the defendants in this proceeding, and the actual calculation of the amounts themselves, as I understand it, is not in any major way questioned by the plaintiffs.
[60] So far as disbursements claimed by the defendants are concerned, being a total of $1239.51 by the first and second defendants and $6034.88 by the third defendant, again, in all the circumstances of this case, these are appropriate and they are not in any real way questioned by the plaintiffs.
[61] In conclusion, therefore, the costs and disbursements to be awarded against the plaintiffs here are as follows:
(a) With respect to the costs of the first and second defendants, these are to be $18,016 as claimed less a 30% allowance totalling $5404.80 which leaves a balance of $12,611.20.
(b) Disbursements as claimed by the first and second defendants totalling
$1239.51.
(c) Costs claimed by the third defendant totalling $26,980 less an allowance amounting to $8,094, leaving a balance of $18,886.
(d) Disbursements claimed by the third defendant totalling $6034.88.
[62] For all the reasons outlined above, the defendant’s application for costs relating to the plaintiffs’ discontinuance of their claim in these proceedings succeeds. An order is now made that the plaintiffs are to pay to the first and second defendants costs totalling $12,611.20 together with disbursements totalling $1239.51, and they are to pay to the third defendant, costs totalling $18,886 together with disbursements totalling $6034.88.
...................................................
Gendall J
Solicitors:
Paul Cassin, Penrose, Auckland
Crown Law, Wellington
Chapman Tripp, Wellington
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