Ivess v Maguire HC Wellington CIV 2007-485-2123

[2010] NZHC 1836

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2007-485-2123

BETWEEN  RICHARD JAMES IVESS AND VANITA ROBYN UIRAROA IVESS

Plaintiffs

ANDBERNARD MAGUIRE AND JANIS LYN MAGUIRE

First Defendants

ANDROBERT JAMES MILLAR Second Defendant

ANDPORIRUA CITY COUNCIL Third Defendant

Appearances: Mr. S.J. Brown - Counsel for Plaintiffs

No appearance for the second defendant

Judgment:      27 September 2010

ORAL JUDGMENT OF ASSOCIATE JUDGE D.I. GENDALL

Solicitors:           Stephen Brown, Solicitor, PO Box 12 293, Wellington

Jeremy McGuire, Solicitors, PO Box 12083, Inner City, Palmerston North 4444

Heaney & Co, Solicitors, PO Box 105391, Auckland

RJ IVESS AND VRU IVESS V B MAGUIRE AND JL MAGUIRE AND ORS HC WN CIV-2007-485-2123  27

September 2010

[1]      This proceeding involves a leaky home claim brought by the plaintiffs against builders, a local authority and a building assessor.

[2]      The  proceedings  were  the  subject  of  a  Judicial  Settlement  Conference following which a settlement was reached as between the plaintiff and the first defendants as builders and the plaintiff and the third defendant, the local authority. A discontinuance of these proceedings against the first defendant and third defendant has since taken place.

[3]      The second defendant, Mr Miller, the building assessor did not participate in the Judicial Settlement Conference.   The proceedings against Mr Miller were therefore adjourned to a call today 27 September 2010 when the matter was last before the Court on 23 March 2010.

[4]      There is no appearance for the second defendant, Mr Miller today.

[5]      Mr Brown, counsel for the plaintiffs has filed a memorandum for this call.

[6]     In that memorandum, Mr Brown indicates that the plaintiffs have now determined, no doubt with some reluctance, that it is likely to be uneconomic for them to pursue their claim against the second defendant Mr Miller and that accordingly they wish to discontinue that proceeding.

[7]      Leave to discontinue the proceeding against the second defendant, Mr Miller is now granted.

[8]      This   leaves   a   question   alive   regarding   the   issue   of   costs   on   the discontinuance.

[9]      On this, it is noted that Mr Miller, the second defendant, filed a statement of defence in this proceeding dated 10 March 2008 and on 5 May 2008 served notice that he had been granted legal aid.

[10]     Notwithstanding this, Mr Miller appears to have taken no further steps in this proceeding.   His counsel, Mr McGuire, in a Memorandum to this Court dated 26

January 2010 sought leave for the second defendant to be excused from the Judicial Settlement Conference which was to take place 2 days later, and indicated further that,  at  that  time,  Mr  McGuire  had  received  no  instructions  from  the  second defendant for at least one year.

[11]     Since that time, there has also been no contact with this Court or appearances on behalf of the second defendant.

[12]     Rule 15.23 High Court Rules deals with the position concerning costs on a discontinuance and states:

Unless the defendant otherwise agrees or the Court otherwise orders, the 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.

[13]     In this situation, the second defendant of course has not consented to costs in this matter lying where they fall.  Notwithstanding that, the plaintiffs obviously have a concern that in a situation where they are discontinuing this proceeding against the second defendant on what they say are purely economic grounds, they are not then subject to an award of costs on the discontinuance.

[14]     At this point, the Court has made no enquiry as to the merits of the plaintiff’s claim against the second defendant.  What is clear is that the second defendant has effectively taken no part in this proceeding since the time of filing his statement of defence in March 2008.

[15]     Clearly authority exists for the Court to exercise its discretion in terms of r

15.23 to make no award of costs against a plaintiff (where circumstances make a different   costs   outcome   just   and   equitable)   notwithstanding   that   they   may discontinue a proceeding against a party – see McGechan on Procedure 15.23.01.

[16]     Under the circumstances prevailing here, I am of the view that no costs award should at this point be made against the plaintiffs.   That is particularly the case bearing in mind that there has been no opportunity to consider the merits in this claim.

[17]     Issues of costs, therefore, if they may arise in the future, are simply left in abeyance.

[18]     Leave is granted to the plaintiffs to oppose any application for costs which may be brought by the legally aided second defendant if indeed any costs claim may arise.

‘Associate Judge D.I. Gendall’