MacFarlane v Independent Real Estate Limited

[2016] NZHC 1784

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2015-419-240 [2016] NZHC 1784

UNDER

The District Courts Act 1947

IN THE MATTER

of an appeal against a decision of the
District Court at Hamilton

BETWEEN

JOE HENRY MACFARLANE AND IRENE GAYE MACFARLANE Appellants

AND

INDEPENDENT REAL ESTATE LIMITED

First Respondent

WILLIAM MICHAEL TUNZELMANN Second Respondent

Hearing:	On the papers
Counsel:	C Gudsell QC for the Appellants D M OʼNeill for the Respondents
Judgment:	3 August 2016

COSTS JUDGMENT OF MUIR J

This judgment was delivered by me on Wednesday 3 August 2016 at 2.00 pm

Pursuant to Rule 11.5 of the High court Rules.

Registrar/Deputy Registrar

Date:……………………

Counsel/Solicitors:

C Gudsell QC, Barrister, Auckland

D P Shore, McCaw Lewis, Hamilton

D M O’Neill, Barrister, Hamilton

M Cooney, Cooney Law, Cambridge

MACFARLANE v INDEPENDENT REAL ESTATE LIMITED [2016] NZHC 1784 [3 August 2016]

[1]      The  respondents  apply  for  scale  costs,  with  an  uplift  of  50%,  on  the appellants’ application for non-party discovery against Spark New Zealand Limited (Spark),  from  whom  the  appellants  sought  details  of  the  point  of  origin  of  a particular phone call.  The appellants believed that such call may have been made by the second respondent.   Had that been the case it may have been critical to the outcome of the appellants’ appeal from the decision of the District Court.

[2]      The application was opposed by the respondents on the grounds, inter alia, that it constituted a fishing expedition.  Spark did not oppose the application which was ultimately granted by Whata J.

[3]      Although  the  application  was  successful  it  did  not  elicit  the  evidence anticipated by the appellants.  Indeed, it transpired that the relevant phone call had not been made by the second respondent but by a local garage.

[4]      Obvious to all parties at the time was the fact that, even if the application had disclosed relevant information, a further application would inevitably follow for that evidence to be adduced in the context of Mr and Mrs MacFarlanes’ intended appeal and that such application would be opposed by the respondents.

[5]      The  respondents  claim  costs  on  the  basis  that,  in  substance,  they  were successful in that no relevant evidence resulted from the application.  I cannot accept that approach as correct.  The application was, in its terms, successful.  Orders were made in the appellants’ favour.   The respondents’ conflate ultimate outcome with interim success.  Nor is it relevant that they may ultimately have been successful in opposing the admission of evidence actually obtained.   That was an argument for another day.

[6]      I agree with counsel for the appellants that costs should appropriately lie where they fall on the application.  It was always open to the respondents to allow determination of the non-party discovery application between the true protagonists, the appellants and Spark, and to reserve their position in respect of the admission of any relevant evidence ultimately obtained.  The respondents chose, however, to enter

the fray.  They were not successful in preventing an order being made.  They have no entitlement to costs.

Result

[7]      I decline the respondents’ application for costs on the appellants interlocutory

application for non-party discovery against Spark New Zealand Limited.

Muir J