McFarlane v Kaikoura Helicopters Limited

[2024] NZHC 793

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2022-409-449

[2024] NZHC 793

BETWEEN

ANDREW ANGUS McFARLANE and SARAH HELEN McFARLANE
Plaintiffs

AND

KAIKOURA HELICOPTERS LIMITED

First Defendant

HELI MAINTENANCE LIMITED
Second Defendant

DAVID JOHN ARMSTRONG and CHELSEA SHEREE ARMSTRONG
Third Defendants

DAVID MURRAY IVES

Fourth Defendant

Hearing:

(On the papers)

Counsel:

P A Cowey and J J Taylor for Plaintiffs T C Daley First Defendant

I Cummings for Second and Fourth Defendants
J I Taylor and L A O’Dwyer and for Third Defendants

Judgment:

12 April 2024

Reissued:

16 April 2024

JUDGMENT OF ASSOCIATE JUDGE LESTER

(Costs)

NOTE: Pursuant to the slip rule, I re-issue this judgment with some typographical errors now corrected. I am obliged to counsel for drawing the errors to my attention.

McFARLANE v KAIKOURA HELICOPTERS LIMITED [2024] NZHC 793 [12 April 2024]

[1]    The third defendants, David Armstrong and Chelsea Armstrong (the Armstrongs) had, in the closing months of 2023, resisted the plaintiffs’ request for discovery.

[2]    In my Minute of 7 December 2023, I said that if the plaintiffs wished to pursue discovery they had to file an application by Friday 22 December 2023 which would be heard on Thursday 8 February 2024. Any opposition from the Armstrongs was to be filed by Friday 19 January 2024 and any affidavit in reply, along with submissions in support of the application, to be filed by 2 February 2024.

[3]    As  it  turned  out,   the  Armstrongs  did  not  file  an  opposition  and  on     2 February 2024, I issued a Minute referring to the 7 December 2023 timetable asking counsel if the discovery application had been resolved and if not, when the opposition would be filed given the submissions  in  support  of the application were due on     2 February 2024.

[4]    The Armstrongs had, in case management conferences at the end of 2023, opposed the plaintiffs’ request for discovery but not filed an opposition leaving it unclear on 2 February 2024 just what the Armstrongs’ position was. The Armstrongs say that with them not having filed a notice of opposition, the plaintiffs should not have not incurred any further costs in preparing for the 8 February 2024 hearing.

[5]    The short point is, it was incumbent upon the Armstrongs to advise the plaintiffs that the discovery application was not opposed. Having not done so, the Armstrongs ran the risk that the plaintiffs would continue to prepare for the hearing, which  is  what  the   plaintiffs  did   in   filing  their  submissions  as  ordered   on    2 February 2024.

[6]    Simply because an application is not opposed does not mean the Court is bound to grant it.

[7]    Accordingly, I am satisfied the plaintiffs are entitled to claim costs for the preparation of their submissions. I do not accept the Armstrongs’ interpretation of

the timetabling direction that submissions were only necessary if the application was opposed.

[8]    The alternative challenge to the costs claimed on the submissions is that a full 2B allowance is not called for given  the submissions  were three pages  long and of a straightforward nature. Brevity does not always equate to simplicity.

[9]    The point of the scale is that costs are to be predictable. The Armstrongs refused to agree to discovery and in doing so the plaintiffs were required to commence a process that was going to result in costs for the unsuccessful party. If counsel for the Armstrongs wanted to stop the risk of costs continuing they needed to advise plaintiffs’ counsel (and the Court) that the discovery sought would be provided before plaintiffs’ counsel had to commence drafting submissions.

[10]   I confirm the plaintiffs are entitled to costs on a 2B basis for their submissions. However, given the order of 7 February 2024 granting the plaintiffs application, followed the Registry contacting counsel for the Armstrongs, I disallow the claim for schedule item 28 — otherwise the plaintiffs’ costs schedule attached to their memorandum of 2 April 2024 is approved.

[11]   The plaintiffs have been largely successful in relation to this costs dispute and I award a further $956.00 in respect of the fixing of costs.

[12]   In my Minute of 14 March 2024 I urged counsel not to spend more on resolving this costs dispute than was in dispute. Given the actual costs that must have been incurred by both parties on this issue, it would seem that advice was not heeded.

Associate Judge Lester

Solicitors:

Parry Field Lawyers, Christchurch (for Plaintiffs) Anthony Harper, Christchurch (for First Defendant)

Duncan Cotterill, Christchurch (for Second and Fourth Defendants) Wynn Williams, Christchurch (for Third Defendants)