Hutchison v Carrigan

[2023] NZHC 2610

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2023-409-319

[2023] NZHC 2610

BETWEEN

CRAIG HUTCHISON

First Plaintiff

LIFELINKS NEW ZEALAND LIMITED
Second Plaintiff

AND

JANE CARRIGAN

Defendant

Hearing:	(On the papers)
Counsel:	B M Russell and M D W King for Plaintiffs L T Meys and L C A Farmer for Defendant
Judgment:	19 September 2023

JUDGMENT OF ASSOCIATE JUDGE LESTER

(Costs)

HUTCHISON v CARRIGAN [2023] NZHC 2610 [19 September 2023]

[1]                 The plaintiffs were in a position to seek judgment by way of formal proof, the defendant not having filed a statement of defence by the due date of 3 August 2023. The defendant, upon learning that an application for formal proof had been made, filed an application for an extension of time to file her defence. Shortly after that application was served, by a joint memorandum of counsel, an extension of time for the filing of the defence was sought, overtaking the application for formal proof and the application for an extension of time.

[2]                 The consent memorandum recorded that the parties be permitted to file submissions on costs within five working days.

[3]The Minute issued by the Court in respect of costs said:

Any party seeking costs in respect of the application to extend time for the filing of the defence is to file a memorandum – not more than three pages –
 within five working days (that is by Wednesday 13 September 2023). If no memorandum is filed, costs shall lie where they fall.

[4]                 Both parties have sought costs. Counsel for the defendant, in their costs memorandum, say they apprehend no costs order in relation to the plaintiffs’ application is entertained. I am not sure how that conclusion was reached given the consent memorandum recorded the parties may apply for costs.

[5]                 The plaintiffs seek wasted costs on the preparation work they undertook in relation to the formal proof hearing. They seek:

(a)2B costs in respect of a memorandum seeking formal proof;

(b)preparation of the affidavit for the hearing; and

(c)preparation for the hearing.

[6]                 While not put in this way, the defendant seeks costs on the basis that she says the plaintiffs were guilty of “sharp practice” in applying for formal proof while counsel were corresponding over the issue of particulars. To give a little more detail in that regard, the statement of defence was due on 3 August 2023. On 17 July 2023, defendant’s counsel sought an extension to file the defence until 11 August 2023. That

request was declined the next day. On 19 July, the defendant filed an application for particulars which was replied to on 1 August 2023. By 7 August 2023, no statement of defence had been filed and formal proof was sought. On 11 August 2023, the proceeding was set down for a formal proof hearing to be allocated. The application for an extension of time was filed on 1 September 2023.

[7]                 There is merit in the plaintiffs’ point that with the request for an extension of time to file a statement of defence having been declined, defendant’s counsel could not simply assume that while particulars were being discussed, time for a statement of defence was implicitly enlarged. Equally, the fact those discussions were going on would have conveyed to the plaintiffs that the proceeding was going to be defended and so seeking formal proof was likely to be always met with an application to extend time.

[8]                 The short point is, the basis of the plaintiffs’ costs application is wasted costs. I am far from convinced the affidavit and the preparation undertaken for the formal proof hearing are wasted. That work will continue to have utility in the proceeding albeit inevitably there will be some need to revisit that work in the future, but that work is not entirely wasted.

[9]                 Having reviewed counsels’ submissions, this is a case where costs should lie where they fell. While ongoing discussion about particulars did not of itself amount to an implicit representation by plaintiffs’ counsel, the time for the statement of defence was at large. As I have said, it would have been plain from those discussions that the proceeding was going to be defended. Equally, defendant’s counsel should have sought clarity over the timing of the defence, given an extension of time had already expressly declined. With the communications between counsel, plaintiffs’ counsel should have called for the filing of a defence. If they had done so and no defence had been filed, the position would look very different.

[10]             Accordingly, in my view, no costs are warranted against the plaintiffs as they have acted as permitted by the High Court Rules 2016. Nor, in my view, are the plaintiffs entitled to costs given the work for which they seek wasted costs is not truly wasted; given an application for an extension of time was inevitable; and in a practical

sense, would likely have been irresistible given the context I have outlined. As I have said, the order of the Court is that costs lie where they fell in respect of the application to extend time for filing a defence.

Associate Judge Lester

Solicitors:

Lane Neave, Christchurch (for Plaintiffs) Neilsons Lawyers, Auckland (for Defendant)