Lynn v A C Fryer & Sons Limited

[2014] NZHC 83

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV-2011-488-000516 [2014] NZHC 83

BETWEEN  MURRAY RICHARD LYNN First Plaintiff

LYNN BROTHERS FARMING LIMITED

Second Plaintiff

ANDA C FRYER & SONS LIMITED First Defendant

ROBERT DENNIS FRYER Second Defendant

PETER WILD Third Defendant

Judgment:                7 February 2014

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 7 February 2014 at 3.30 pm

pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date…………………………

LYNN & OR v A C FRYER & SONS LTD [2014] NZHC 83 [7 February 2014]

[1]      In my decision 7 November 2013 I entered judgment for the second plaintiff against the first and second defendants.  The second plaintiff now seeks costs against the first and second defendants.

[2]      The second plaintiff ’s claim against the third defendant failed and the third defendant seeks costs against the second plaintiff.   However, the second plaintiff resists paying costs to the third defendant and seeks an order that the first and second defendants pay the third defendant’s costs.1

Costs against the first and second defendants

[3]      The first and second defendants accept that they are liable to pay costs on a

2B basis, subject to two relatively minor adjustments.   Mr Bradford provided two schedules for the costs calculation because the daily rate changed over the course of the litigation.  Mr Quarrie, for the first and second defendants, objected to a claim in schedule A of three days for the commencement of the proceedings against the second defendant who was joined subsequently but did not require significant additional work and was essentially an amended statement of claim.   I accept that submission.

[4]      In relation to Schedule B, MrQuarrie objected to a separate claim of three days each for preparation of the hearing against the first and second defendants.  I accept his submission that, given the common facts and legal arguments, there is no need for additional costs for each defendant.  Therefore, the order for costs payable by the first and second defendants will be a total of $44,736.50.

[5]      There is no objection taken to the claimed disbursements in schedules C, D

and E which total $10,546.28. Those disbursements are also payable.

1      A Sanderson order; see Sanderson v Blyth Theatre Co [1903] 2 QB 533.

[6]      Whether an unsuccessful defendant should meet the costs of a successful defendant is a matter that falls within the Judge’s discretion.2   The reasonableness of the joinder is a relevant factor but not determinative.   Among the other relevant factors is the whether the successful defendant did anything to cause or contribute to the joinder; that may tell in favour of an order and vice versa.

[7]      In  seeking  an  order  that  the  first  and  second  defendants  pay  the  third defendant’s costs, the second plaintiff asserted that the joinder of the third defendant was reasonable, most of the factual allegations pleaded against the third defendant were proven and the third defendant acknowledged an error in his preparation of the scheme plan.  The first and second defendants resist this argument on the basis that the second plaintiff’s claim failed as a result of its own failure to consider the issue of negligence.  In the circumstances, it would not be reasonable to require the first and second defendants to meet the costs arising from that failure.

[8]      I accept that the joinder of the third defendant was reasonable.  He admitted making an error and it was obvious from my findings that the error contributed to the plaintiff’s misapprehension as to the use to which the land could be put.  However, that aspect of the case stood quite independently of the first and second defendants. The allegations against them were entirely different.

[9]      Further, the second plaintiff’s failure was due to lack of evidence regarding the standard of care.   This was a matter entirely outside the first and second defendant’s control or sphere of interest.  Had the issue been addressed, the second plaintiff may well have recovered against the third defendant.  I do not consider it reasonable to require the first and second defendants to pay or to contribute to the

costs associated with the third defendant in these circumstances.

2      Hong v A & R Brown Ltd [1948] 4 QB 515, 1 All ER 185; Lane Group Ltd v D I & L Paterson

Ltd [2000] 1 NZLR 129.

[10]     There will therefore be an order in favour of the third defendants against the second plaintiff on a 2B basis in accordance with Mr Quarrie’s memorandum, which

total $36,408, together with costs and disbursements of $1,010.80.

P Courtney J