Littlejohn v Southern Response Earthquake Services Limited

[2013] NZHC 1072

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2012-409-2524 [2013] NZHC 1072

BETWEEN  KITT ROBERT MAYO LITTLEJOHN AND PHILIP BASIL NICHOLSON Plaintiffs

ANDSOUTHERN RESPONSE EARTHQUAKE SERVICES LIMITED

Defendant

Hearing:        (On papers)

Counsel:        G Shand for Plaintiffs

S Waggott for Defendant

Judgment:      13 May 2013

JUDGMENT OF MILLER J (AS TO COSTS)

[1]    The plaintiffs have moved for costs on the proceeding.   I decline to award them.  My reasons follow.

[2]    The proceeding has settled and a notice of discontinuance is apparently to be filed, although that has not yet happened.  Costs are sought on the footing that the plaintiffs won, since the defendant has agreed to pay them a sum of money which they say is not far short of the amount originally claimed and substantially more than the defendant initially offered.

[3]    Costs are normally awarded for steps in a proceeding, by which I mean formal steps  under  the  rules  of  the  Court.    They  normally  follow  the  result  of  the proceeding, which relevantly may be discontinuance or judgment.  So a party who has won a judgment normally gets costs, and a plaintiff who discontinues normally

must pay costs on the discontinuance.  As the matter has settled without judgment

KITT ROBERT MAYO LITTLEJOHN AND PHILIP BASIL NICHOLSON v SOUTHERN RESPONSE EARTHQUAKE SERVICES LIMITED HC CHCH CIV-2012-409-2524 [13 May 2013]

and a discontinuance is to be filed, the plaintiffs would not ordinarily be entitled to costs at all.

[4]    Costs are always in the Court’s discretion, but it will not ordinarily speculate about what would have happened had there been a trial.[1]   Only in exceptional cases will the Court take a different view:  Auckland City Council v Southbourne Holdings Limited HC AK CIV-2010-404-4076, 8 November 2011.  I do not think this case is sufficiently exceptional.   It is not enough to compare amounts initially claimed against those offered.   All of that might have changed by the time of trial.   The

[1] Ford v First National Real Estate Network Ltd (2006) 18 PRNZ 432.

reasons for any disparity between the claim and the amount paid might also be relevant, as might the defendant’s reasons for not paying before action.

Miller J

Solicitors:

Wynn Williams & Co, Christchurch for Defendant