Lawton v Verity Clarke Limited HC Dunedin CIV-2010-412-000589

[2011] NZHC 406

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CIV-2010-412-000589

BETWEEN  STEPHEN LAWTON Plaintiff

AND  VERITY CLARKE LIMITED First Defendant

AND  LINDA VERITY Second Defendant

AND  JOHN CLARKE Third Defendant

AND  VECTOR REALTY LIMITED AND FLETCHER VAUTIER MOORE Third Parties

Hearing:         26 November and 20 December 2010

Appearances: T J Shiels for Plaintiff

B M Russell for Defendants

Judgment:      6 April 2011

JUDGMENT OF CHISHOLM J AS TO DIRECTIONS AND COSTS

[1]      This judgment responds to the joint memoranda of counsel seeking directions and their memoranda relating to costs.  I regret the delay in delivering this judgment, which has been occasioned by the earthquake.

Directions

[2]      Because events have overtaken the timetable proposed by counsel, I have substituted a new timetable. There will be the following orders:

(a)       The proceeding will be on the standard track.

LAWTON V VERITY CLARKE LIMITED & ORS HC DUN CIV-2010-412-000589 6 April 2011

(b)      For the purposes of rule 14.3 the proceeding will be Category 2.

(c)       Each party shall file and serve discovery affidavits by 20 April 2011. (d)      Inspection is to take place by 1 May 2011.

(e)       Any interlocutory applications are to be filed and served by 20 May

2011.

(f)Any notices of opposition and affidavits in opposition shall be filed and served by 3 June 2011.

(g)      If necessary a further case management conference will be allocated as soon as possible thereafter for any further timetabling arising from interlocutory applications.

(h)In the event that the parties agree on a mediation or other alternative dispute  resolution  procedure  they  can  apply  to  the   Court  for suspension of the timetable.

[3]      I would encourage the parties to consider mediation .  If counsel consider that any of the times that I have substituted are unrealistic they should submit a joint memorandum proposing an alternative timeframe.

Costs

[4]      The defendants seek an order for payment of costs on the basis that it was unreasonable of the plaintiff to pursue his application for summary judgment after the contents of an arguable defence had been conveyed by the defendants.  Costs of

$8272 plus disbursements of $319 are sought.

[5]      Any order for costs is opposed by the defendant on the basis that costs should be dealt with at the conclusion of the substantive hearing when the result is known. There is also a challenge to the quantum of costs on the basis that the time allocation for step 5 should be 0.6 days rather than one day.

[6]      In  terms  of  rule  14.8(3)  the  general  principle  that  costs  on  opposed interlocutory applications must be fixed when the application is determined does not apply  to  summary  judgment  applications.    The  principles  to  be  applied  were discussed in NZI Bank Limited v Philpott[1] [1990] 2 NZLR 403. Applying those principles I have concluded that it would be premature to award costs on the summary judgment application at this stage. However, if costs are ultimately

awarded in favour of the defendants I am satisfied that the defendants’ calculation is fair and reasonable.   In other words, the quantum of costs would be $8272 plus disbursements of $319.

[1] NZI Bank Limited v Philpott [1990] 2 NZLR 403

[7]      The defendants’ application for costs to be awarded at this stage is dismissed. Costs are reserved until final disposition.

Solicitors:

Antony Hamel, Dunedin

Lane Neave, Christchurch