Mauger v Tucker

[2022] NZHC 138

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2020-409-226

[2022] NZHC 138

BETWEEN

P S MAUGER, T J MAUGER, S W MAUGER and P J CRON

Plaintiffs

AND

S M TUCKER

First Defendant

AND

L C HERMANSSON

Second Defendant

Hearing:

On the papers

Appearances:

N A Till QC for plaintiffs

K W Clay and R L D Paul for First Defendant T J Castle for Second Defendant

A N Riches for Executors of Estate of W J Mauger

Judgment:

10 February 2022

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

[Costs]

[1]                 In my judgment of 29 November 2021 I made an order sought by the applicants, the children of, and  executors  and  trustees  of,  the  estate  of  the late W J Mauger, substituting them for their late father as the plaintiffs in this proceeding and dismissed applications by the first and second defendants for orders striking the proceeding out.

[2]                 In the final paragraph of my judgment I indicated a preliminary view to the effect that the plaintiffs were entitled to a costs order on a 2B basis as they were the successful parties.

MAUGER v TUCKER [2022] NZHC 138 [10 February 2022]

[3]                 I had imagined that counsel would resolve costs. However, that has not happened. On behalf of the plaintiffs, Mr Till seeks costs on a 2B basis and has calculated these at $21,068.50 (inclusive of disbursements).

[4]                 Counsel all appear to agree that the plaintiffs were the successful parties in the interlocutory proceeding, that prima facie they are entitled to costs, that any costs award should be calculated on a 2B basis and that Mr Till’s calculation of costs on that basis is accurate.

[5]                 However, both Mr Clay for the first defendant and Mr Castle for the second defendant submit that the Court should refrain from making a costs order, or at least an order with immediate effect. Mr Clay filed written submissions as to costs dated

21  December  2021.   Mr Castle  followed  up  with  written  submissions  dated    22 December 2021. Mr Till responded on 23 December 2021.

[6]                 It does not appear to me to be doing their submissions any disservice , or to be unfair in any way, to say that the essential argument advanced by both Mr Clay and Mr Castle on behalf, respectively, of the first and second defendants, is that the applicants ought to be deprived of a costs award because of the actions of Mrs Cron in making the ex parte application for leave to commence this proceeding on her late father’s behalf back in 2020.

[7]                 In my 29 November 2021 judgment I observed that that application could have been more fulsome and in particular could have laid out for the Court additional information which Ms Cron appears to have had at the time as to the defences that might be available to the proposed defendants.  I  did  not, however,  suggest  that Ms Cron or her solicitors or counsel at the time had acted improperly. Rather, the case appeared to me to be one where a more comprehensive job might have been done to give the Court a fuller picture of things. That said it is not at all obvious to me that the outcome would have been any different.

[8]                 I accept of course the point emphasised by both Mr Clay and Mr Castle that the obligations of parties — and more particularly their legal advisers — to comply

with the rules of Court and their professional obligations in making ex parte applications are of the very first importance.

[9]                 However, for present purposes at least, whatever criticisms might be levelled at Mrs Cron and her legal advisers in relation to that application, are now historical. No steps were taken to have the order set aside at the time.

[10]             Certainly, as Mr Till submits in reply, costs are not a mechanism for punishing parties in relation to spent aspects of the litigation.

[11]             Even if that were not the case it needs to be remembered that there are four applicants in this case, and it is only Ms Cron who is open to criticism in relation to the application for leave.

[12]             In short there is nothing that Mr Clay or Mr Castle have said in their submissions that cause me to alter my preliminary view that the applicants are entitled to costs on a 2B basis. As there would seem to be no issue about Mr Till’s calculation of these, I make an order in favour of the applicants (jointly and severally) against the first and second defendants (jointly and severally) for costs as set out in Mr Till’s memorandum dated 16 December 2021.

[13]             The second defendant has applied for leave to appeal from my judgment. Generally, such applications are dealt with on the papers. Counsel are to notify the Registry whether they are content for the application to be dealt with in that way, or whether any party seeks an oral hearing. In either event, counsel are to confer and propose a timetable for the exchange of submissions.

Associate Judge Johnston

Solicitors:

Rhodes & Co for the Plaintiffs

Tim Holton Law for the First Defendant Allan & Yee for the Second Defendant