Luxe One Limited v NZ Transport Agency

[2019] NZHC 452

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2018-485-485

[2019] NZHC 452

BETWEEN

LUXE ONE LIMITED

First Plaintiff

AND

GATEWAY HOLDING COMPANY NO 2 LIMITED

Second Plaintiff

AND

NZ TRANSPORT AGENCY

First Defendant

THE LOWER HUTT CITY COUNCIL

Second Defendant

Hearing:	On the papers
Counsel:	J D Dallas for Plaintiffs T Smith for Defendants
Judgment:	14 March 2019

JUDGMENT OF GRICE J

(Costs)

[1]        This matter was discontinued by the plaintiffs following an application by the defendants for summary judgment or to strike out the claim.

[2]The notice of discontinuance was filed before the application could be heard.

[3]The grounds for the strike out application included:

(a)The proceeding disclosed no reasonably arguable cause of action against the defendants;

LUXE ONE LIMITED v GATEWAY HOLDING COMPANY NO 2 LIMITED [2019] NZHC 452 [14 March 2019]

(b)The proceeding was frivolous and vexatious; and

(c)The proceeding was barred by s 182 of the Building Act 2004. Section 177 requires a party to apply to the Chief Executive for a determination. In this case a determination had not been made nor had the Chief Executive refused to make a determination in the matter.

[4]        In addition, the defendants, in their application, said that the statement of claim was otherwise so deficient it was incapable of “effective repair”.

[5]        Following the filing of the notice of discontinuance, the plaintiffs filed a memorandum opposing costs. They say they made the claim in reliance on information on the defendants’ website which was inaccurate. No evidence is provided in support of this contention, nor is it clear exactly how that relates to the proceedings.

[6]        The defendants seek an award of costs in accordance with the principle in     r 14.2(1)(b) that “an award of costs should reflect the complexity and significance of the proceeding”.1 They seek scale costs on a category 2, band B classification. The defendants list the steps taken by them up to the filing by the plaintiffs of the discontinuance as follows:

(a)Commencement of defence by each defendant;

(b)Preparation for first case management conference;

(c)Filing memorandum for first case management conference; and

(d)Filing the interlocutory application for strike out and summary judgment.

[7]        The defendants attach to their submissions a schedule of amounts claimed for those steps. The total claim amounts to $12,042. The calculations carried out by the

1      High Court Rules 2016.

defendants in the schedule appear appropriate. If there are any arithmetical miscalculations the defendant should take the matter up with the Registrar.

[8]        There appears to be no reason why costs should not be awarded in favour of the defendants. I have reviewed the pleadings and the interlocutory application. The proceedings reflect a case of medium complexity and significance. Accordingly, I am of the view that the proceedings should be classified as 2B.

[9]        Accordingly, costs are awarded in favour of the first and second defendants on a 2B basis for the steps set out above for a total sum of $12,042.

Grice J