Jackson v Green

[2015] NZHC 2578

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

CIV-2014-406-046 [2015] NZHC 2578

UNDER

the Judicature Amendment Act 1972

IN THE MATTER

of an adjudicator's determination dated
30 March 2010 under the Construction
Contracts Act 21002

BETWEEN

PETER KEVIN JACKSON Applicant

AND

ROBERT JOHN GREEN First Respondent

FORESHORE CONSTRUCTION (MARLB) LIMITED

Second Respondent

CIV-2014-406-047

BETWEEN  PETER KEVIN JACKSON Plaintiff

ANDFORESHORE CONSTRUCTION (MARLB) LIMITED

First Defendant

NEVILLE BRUCE MCCALLUM Second Defendant

On the papers
Counsel:	J A Dean for Applicant/Plaintiff Q A M Davies for Respondents/Defendants
Judgment:	20 October 2015

JUDGMENT OF CLIFFORD J (COSTS)

JACKSON v GREEN [2015] NZHC 2578 [20 October 2015]

[1]      These proceedings were commenced on 1 and 2 September 2014.  Associate Judge Matthews held a first case management conference on 4 February 2015.  In his Minute of that conference, Judge Matthews noted:

[1]       Proceeding 46 is an application for judicial review of a decision of the first respondent, Mr R J Green, an adjudicator under the Construction Contracts Act 2002.   He is not participating in the case; the Registry has received written advice from him that he will abide the decision of the Court.

[2]       Proceeding  47  is  a  claim  for  breach  of  contract  and  negligence against the two named defendants.

[3]       The  proceedings  raise  issues  arising  from  a  contract  for  the construction of a jetty and related facilities in the Marlborough Sounds.   I understand that interpretation of the contract is an issue, as is workmanship. The issues raised on each proceeding arise from the same set of facts, and may overlap.

[2]      The Associate Judge set a timetable for the exchange of expert and lay briefs, and for the experts to confer and produce a statement of agreed conclusions and a summary of issues in dispute.  That process was to have been completed by 22 May. That did not occur.

[3]      There have been a series of telephone conferences since that time, which show that the difficulties have been largely of the plaintiff’s making.   In his memorandum  for  the  3  July telephone  conference,  Mr  Davies  sought  “costs  in respect of the plaintiff’s failure to comply with the Court’s timetable directions”. Mr Davies has repeated that application on a number of occasions.  Most recently he did so  in  a  memorandum  of 30  September,  in  which  he updated the  Court  on progress with matters generally.   He referred to a more detailed memorandum of

9 September 2015.  In that memorandum, and by reference to rr 7.48, 14.16 and 14.8 of the High Court Rules, he submitted that band B costs for 2.2 days (for memoranda to address non-compliance with timetable orders and two case management conferences), together with a 50 per cent uplift, and the costs of the costs application itself, gave a basis for an order of costs in the amount of $8,251.00.

[4]      Costs normally follow the event.   That is, the outcome of the proceedings. There is specific provision for costs on interlocutory orders. Timetable directions are not, in my view, generally categorised as “interlocutory orders”.  An unless order,

such as the one I made on 3 September 2015, in effect foreshadowed an enforcement step under r 7.48.  Even then, I would not regard it as an interlocutory order as that concept is generally understood in the context of costs.

[5]      In   my  view,   Mr   Davies’  application   is   premature.     There   may  be circumstances where costs would be awarded before a matter has been heard, or a formal interlocutory order made.   I do not see these proceedings as requiring that rather unusual step.

[6]      Rather – and as the Rules recognise – what would appear at this point to be the plaintiff’s undoubted delays are likely to be relevant to any award of costs which may be made when the substantive proceeding is heard or otherwise disposed of.

[7]      The application is therefore declined.

[8]      The parties are to update the Court as to where matters stand at the present time and, in particular, whether this matter is now ready to be set down for hearing.

Clifford J

Solicitors:

John Dean Law Office, Wellington for Applicant/Plaintiff

Gascoigne Wicks, Blenheim for Respondents/Defendants