Lindsay Builders Limited v Bird HC Christchurch CIV-2010-409-2724
[2011] NZHC 1597
•11 August 2011
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CIV-2010-409-2724
BETWEEN LINDSAY BUILDERS LIMITED Plaintiff
ANDPHILIP ANTHONY BIRD AND AMANDA JANE BIRD Defendants
Hearing: By memorandum
Appearances: No appearance for plaintiff
R S Brown for defendants
Judgment: 11 August 2011 at 10:15 AM
JUDGMENT OF LANG J [on costs]
This judgment was delivered by me on 11 August 2011 at 10.15 am, pursuant to Rule
11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
LINDSAY BUILDERS LTD V BIRD HC CHCH CIV-2010-409-2724 11 August 2011
[1] On 13 July 2011 I dismissed the plaintiff ’s claim for summary judgment. I directed that any memorandum by the defendants seeking costs should be filed and served within 14 days. I then gave the plaintiff 21 days thereafter to file a memorandum in response.
[2] Counsel for the defendants filed and served his memorandum on 14 July
2011. The plaintiff has chosen not to respond to the matters contained therein. It is therefore necessary for me to deal with the issue of costs in the absence of any submissions for the plaintiff.
[3] Normally costs in relation to the dismissal of an application for summary judgment are served for the reasons set out in NZI Bank v Philpot[1]. There are several reasons for that policy. First, a plaintiff should not be discouraged from bringing an application for summary judgment by the prospect that an award of costs may be made against it in the event that the application is unsuccessful. Second, the prospect of an adverse award of costs should not operate as an incentive to a plaintiff
not to withdraw an application for summary judgment once the defendants have filed material that demonstrates an arguable defence. Third, the plaintiff may ultimately succeed at trial. In that event the Court may consider it appropriate to award the plaintiff costs in respect of an earlier application for summary judgment, notwithstanding the fact that it may have been dismissed or withdrawn.
[1] NZI Bank v Philpot [1990] 2 NZLR 403.
[4] The defendants seeks costs on an indemnity basis. They do so on the basis that the plaintiff’s claim was so unmeritorious that no application for summary judgment should ever have been filed.
[5] I do not propose to traverse the arguments that the defendants propose to advance in opposition to the application for summary judgment. Essentially the defendants will rely on the same arguments at trial should the proceeding get that far. Although the proposed defences were arguable, I am not prepared to say that they
would have imposed an insuperable barrier to the plaintiff’s claim.
[6] I accept, however, that the plaintiff put the defendants to considerable expense by requiring them to file comprehensive documents in opposition to the application for summary judgment. The plaintiff then effectively abandoned the defended hearing after it dispensed with the services of its counsel. The plaintiff ought to have notified the defendants much earlier that it did not propose to appear in support of its application for summary judgment. Had it advised the defendants of its position at the time that it dispensed with the services of its counsel, the defendants would not have been required to bear the cost of preparing for a defended hearing.
[7] In those circumstances I am satisfied that an award of costs should be made in favour of the defendants and that an increased award of costs is also justified. This will reflect the fact that the plaintiff contributed unnecessarily to the expense of the proceeding by failing to accept the defendants’ legal argument.2
[8] I therefore award costs and disbursements to the defendants. Costs are to be calculated on a Category 2B basis but increased by 200 per cent to reflect the factors
to which I have referred.
Lang J
Solicitors:
Meares Williams, Christchurch
Copy to: Plaintiff
2 R 14.6(3)(b)(iii)
0
0
1