Little v Warwick - [2019] NZHC 1622

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-2748

[2019] NZHC 1622

BETWEEN ANDREA LOUISE LITTLE and SDM TRUSTEE COMPANY LIMITED
Plaintiffs

AND

RODNEY STEPHEN WARWICK and SALLY JOAN MACFARLANE WARWICK

Defendants

Hearing: On the papers

Appearances:

M C Frogley for the Plaintiffs

W McCartney for the Defendants

Judgment:

12 July 2019

RESERVED JUDGMENT OF ASSOCIATE JUDGE SMITH ON COSTS

This judgment was delivered by me on 12 July 2019 at 11.30am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors / Counsel:
Rainey Law, Auckland
T S Carnachan, Auckland W McCartney, Auckland

LITTLE v WARWICK [2019] NZHC 1622 [12 July 2019]

[1] On 15 April 2019 I gave judgment dismissing an application by the defendants for summary judgment.1 I directed that if counsel could not agree on costs, memoranda were to be filed setting out the parties' respective claims. The plaintiffs filed a memorandum claiming costs, and Mr McCartney has filed a detailed memorandum in opposition. A reply memorandum was filed by the plaintiffs on 30 May 2019.

[2]I now give judgment on the plaintiffs' claim for costs.

Submissions for the plaintiffs

[3] Mr Frogley submits that costs should be awarded on a 2B basis. The amount the plaintiffs seek for costs and disbursements are set out in the following table:

Third Schedule Days Amount

Item 23 Filing Opposition to Interlocutory Application 0.6 $1,338

Item 12 Appearance at call over Edwards J. 0.2 $446

Item 24 Preparation of written submissions 1.5 $3,345

Item 26 Appearance at hearing for principal counsel 1.0 $2,230

Item 27 Second counsel (justified by complexity of issues raised by the defendants) 0.5 $1,115

Subtotal $8,474

Disbursements

Filing fee $110

Photocopying casebook of authorities @ 30c per page $75

Building Compliance Services NZ Ltd (Quentin Dagger) invoice attached $1,584

AS Jacobs (Graham Durkin – Expert) invoice attached $1,053

AS Jacobs (Graham Durkin – Expert) invoice attached $3,977

QPC Commercial (builders assisting Graham Durkin) invoice attached $609

Total costs and disbursements sought $15,882

[4] Mr Frogley submits that the defendants should be ordered to pay costs on the unsuccessful application, notwithstanding that their application was for summary judgment and summary judgment applications are not subject to the ordinary rule that, absent special reasons to the contrary, costs on an interlocutory application are to be fixed when the application is determined.2 Mr Frogley submitted that the defendants were in a position to assess the strengths and weaknesses of their case when they

1 Little v Warwick [2019] NZHC 822.
2 High Court Rules 2016, r 14.8.

proceeded with their application for summary judgment, and it should have been apparent from reading the plaintiffs' affidavits and notice of opposition that the summary judgment application could not succeed.

[5] Mr Frogley rejected any suggestion that the plaintiffs succeeded on the summary judgment application on the basis of matters that had not been properly pleaded by them (in particular, on the basis that the defendants had deceitfully…

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.

Continue reading Little v Warwick

Details

AGLC: Little v Warwick [2019] NZHC 1622
Case: [2019] NZHC 1622
Decision Date: 12 July 2019

CaseChat Overview and Summary

In the case of Little v Warwick, the plaintiffs, Andrea Louise Little and SDM Trustee Company Limited, sought costs from the defendants, Rodney Stephen Warwick and Sally Joan MacFarlane Warwick, following a dismissed application for summary judgment. The plaintiffs claimed that the defendants failed to disclose a critical report, the Drybuild Report, which would have revealed the true condition of the property they sold to the plaintiffs. The defendants argued that costs should be reserved or reduced, citing the complexity of the issues and the need for further evidence.

The court considered whether the defendants should have been aware of the potential failure of their summary judgment application, particularly after receiving the Drybuild Report. It was noted that the defendants' failure to disclose the report and the subsequent need for expert evidence indicated that the case was not suitable for summary judgment. The court found that the defendants could have assessed the strength of their case and should have been aware that their application had little chance of success. The plaintiffs' reliance on misrepresentation by silence, including the non-disclosure of the Drybuild Report, was deemed sufficiently clear in their pleadings to warrant costs.

The court concluded that the plaintiffs were entitled to costs on a 2B basis, without any reduction. However, the court did not award costs for second counsel, finding that the plaintiffs' counsel was capable of handling the hearing alone. Additionally, the court deferred the decision on expert witness expenses until after the trial. The defendants were ordered to pay costs of $7,359 and disbursements of $185, with the plaintiffs' claim for witness expenses reserved for later consideration.

Orders