Krause v Brady & Walsh Limited - [2023] NZHC 588

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2022-485-342

[2023] NZHC 588

BETWEEN
JANE MEREDITH KRAUSE

Plaintiff

AND

BRADY & WALSH LIMITED

Defendant

Hearing: On the papers

Appearances:

T Shiels KC for Plaintiff S Wroe for Defendant

Judgment:

22 March 2023

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

[Costs]

[1] In my reserved decision dated 9 December 2022 I entered summary judgment for the plaintiff, Ms Jane Krause.1 The issue in the case was whether the defendant, Brady & Walsh Ltd, was entitled to terminate a sale and purchase agreement for a townhouse, as it had purported to do, or whether the defendant had earlier elected not to terminate, thereby waiving the right to do so.

[2] In the final paragraph of my judgment I recorded my preliminary view that the plaintiff was entitled to costs, and, as the issue had been raised in argument, I also indicated that it was not obvious to me that there was any basis for an award of indemnity or increased costs.

1 Krause v Brady & Walsh Ltd [2022] NZHC 3587.

KRAUSE v BRADY & WALSH LIMITED [2023] NZHC 588 [22 March 2023]

[3] The parties having been unable to agree on costs. Counsel have filed and served memoranda as to these. The Court must now deal with the issue.

[4] The plaintiff says that the defendant declined to engage after her case had been laid out, including citing recent Court of Appeal authority, Jansen v Whangamata Homes Ltd.2 She says that her narrative of events was largely unchallenged and there was no finding materially different from it by the Court. In those circumstances, the plaintiff contends that the defendant acted unreasonably in defending the claim, and seeks indemnity costs (of $129,690.65) pursuant to r 14.6(4)(a) of the High Court Rules 2016, or, alternatively, a 50 per cent uplift in scale costs under r 14.6(3).

[5] Further, the plaintiff submits that, if the Court is minded to award scale costs, band C is appropriate for the preparation of the summary judgment application. This, it is said, is because the full history of communications and dealings between the parties was pivotal and, while the plaintiff’s narrative was largely unchallenged, the defendant’s approach meant that the plaintiff was nonetheless required to prove it.

[6]Finally, the plaintiff seeks costs for this costs application.

[7] The defendant accepts that the plaintiff is entitled to costs, but submits that these should be limited to scale costs on a 2B basis. On its behalf, Ms Wroe submits that the proceeding was straightforward, and did not involve novel or complex issues of fact or law. She says that this was a single issue case.

[8] The defendant disputes the contention that its actions warrant an award of indemnity or increased costs, referring to my observation that “the defendant company was entitled to defend the application and, on its behalf, Ms Wroe said everything that could be said and nothing more”.3…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NZHC 588
Decision Date: 22 March 2023

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Krause v Brady & Walsh Limited involved a dispute between the plaintiff, Jane Meredith Krause, and the defendant, Brady & Walsh Limited. The central issue was whether the defendant had the right to terminate a sale and purchase agreement for a townhouse, or if they had previously waived that right. The case was heard on the papers, with T Shiels KC representing the plaintiff and S Wroe representing the defendant. The Associate Judge Johnston delivered the judgment on 22 March 2023.

The court had to decide whether the defendant was entitled to terminate the agreement or if they had waived the right to do so. The plaintiff argued that the defendant had acted unreasonably by defending the claim, while the defendant maintained that their defence was reasonable and not improper. The plaintiff sought indemnity costs or a 50% uplift in scale costs, while the defendant argued for scale costs on a 2B basis. The court needed to consider the nature of the proceeding, the reasonableness of the parties' conduct, and the appropriate costs regime for the case.

The court found that the proceeding was straightforward and did not involve novel or complex issues of fact or law. The defendant was entitled to defend the application, and there was a genuine evidential conflict concerning a relevant issue. The court concluded that the plaintiff had not shown that the defendant's position unnecessarily contributed to the time and expense of the proceeding, leaving no basis for increased or indemnity costs. The court also found that there was no special aspect of the case or exceptional complexity that warranted an award of costs for the costs application itself. Therefore, the court awarded scale costs on a category 2, band B basis for each step involved in the proceeding, along with allowable disbursements. The plaintiff would receive these costs from the defendant, together with such disbursements as may be allowed by the Registrar.

Orders