Mayne Farm Limited v Coates

[2014] NZHC 1501

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2014-419-112 [2014] NZHC 1501

BETWEEN

MAYNE FARM LIMITED

Plaintiff

AND

BRETT RODRICK COATES and RACHEL LEE COATES and RUSSELL IAN ALEXANDER

First Defendants

COATES MAYNE LIMITED Second Defendant

Hearing:	30 June 2014
Appearances:	Ms R Scott for Plaintiff Ms K McLuskie for First and Second Defendants
Judgment:	30 June 2014

JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE [on costs]

MAYNE FARM LIMITED v COATES & Anor [2014] NZHC 1501 [30 June 2014]

[1]    In this case the plaintiff sued on an agreement concerning which the plaintiff sought specific performance.  One of the provisions of the agreement was set out in paragraph 7(b) of the statement of claim which alleged:

(b)      The first defendants agreed to transfer to, and/or procure the transfer back, of 72 shares in CML to the plaintiff.

[2]      The proceedings were duly served and an application for summary judgment was brought.  On 2 June 2014 I adjourned the matter until today’s date because it appeared that from that point at least the first defendants accepted the plaintiff’s claim for the transfer of shares and the adjournment was sought for one month so that the transfer could be attended to.  It was stated that once that transfer has taken place the only outstanding matter will be costs and that it was hoped that they could be resolved by agreement. The point has now been reached where the share transfers were signed within the last week.  These are the share transfers that the plaintiff was seeking orders directing the defendants to complete.  The plaintiff now seeks costs. It takes the position that it has been successful in getting the remedy that it sought when it issued the proceedings.

[3]      Ms McLuskie suggested (and Ms Scott agreed) initially that costs should be dealt with subsequently by way of memorandum.

[4]      In my view there is much to be said for dealing promptly with issues of costs rather  than  allowing  them  to  spin  off  further  factual  and  legal  disputes  that necessitate filing additional documents.  Rule 14.2 has as one of its objectives that so far as possible the determination of costs should be practicable and expeditious.1

[5]      A further guiding principle to the exercise of the costs jurisdiction is that the party who fails with respect to a proceeding or an interlocutory application should pay costs to the party who succeeds.

[6]      I do not consider that there would be anything to be gained by adjourning the matter so that further memoranda can be filed.  It will only be exceptionally that the

1 Rule 14.2(g).

Court will go into an enquiry as to the merits of the position taken in defending a case or bringing a case where the unsuccessful party is later looked to for costs.  In my view it is preferable that the matter be dealt with today and that the conventional approach should be taken which would require that the defendants pay costs to the plaintiff.  That accordingly will be the form of the order I make.

[7]      The next issue concerns the scale to actually be applied.   Ms McLuskie makes a good point in this case because the defendants did not take any steps to file documents in opposition the costs were reduced to that extent.  She suggested that costs on a 2A basis should be payable.

[8]      Dealing with the first point, it seems to me that the fact that the defendants did not take any steps and thereby reduce the costs incurred by the plaintiff will in fact be reflected in the form of any order in that the plaintiff cannot claim for costs for work which it did not have to undertake.  I do not consider that that issue impacts the question of which costs band should be ordered.

[9]      Category  2  proceedings  are  obviously  appropriate  in  this  case  and  the defendants do not submit otherwise.  I do not consider that any band other than band B is indicated here.   This being a case where it seems to me from looking at the proceedings and having regard to the subject matter and the degree of complexity would well justify band B on the grounds that they involve the expenditure of a normal amount of time which should be considered reasonable.   Therefore in my view costs on a 2B basis ought to be allowed and there will be an order accordingly. Disbursements of $1,828.40 which the plaintiff claims seem to be reasonable and

there will be an order directing the defendants to pay those as well.

J P Doogue

Associate Judge