McKenna v Bank of New Zealand

[2012] NZHC 3233

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-5998 [2012] NZHC 3233

BETWEEN  NIGEL ANTHONY MCKENNA AND JOHN CHARLES STRINGER AS TRUSTEES OF THE N A MCKENNA TRUST

Intended Plaintiffs

ANDBANK OF NEW ZEALAND Intended Defendant

Hearing:         27 November 2012

Appearances: Mr E St John for plaintiff

Mr A L Harlowe for defendant

Judgment:      27 November 2012

ORAL JUDGMENT OF ASSOCIATE JUDGE DOOGUE

Solicitors:

E St John, Auckland – [email protected]

Buddle Findlay, P O Box 1433, Auckland – [email protected]

MCKENNA & Anor AS TRUSTEES OF THE N A MCKENNA TRUST V BANK OF NEW ZEALAND HC AK CIV-2012-404-5998 [27 November 2012]

[1]      The issue that was raised was as follows.   The intending plaintiff made an application   pursuant   to   r   8.20   for   particular   discovery   before   proceeding commenced.   Before the application could be heard, the intended defendant voluntarily provided the documents that were sought.  The intended defendant now seeks a costs order on the application and the costs of complying with the order.

[2]      The intended plaintiff seeks costs on its application.  It also resists paying the costs of providing the pre-commencement discovery.

[3]      The first issue is concerned with the costs of bringing the application.

[4]      The party who fails is generally required to pay the costs of an application. In this case, it proved not to be necessary for the court to make orders because the intended defendant provided the discovery which was sought without the need for an order being made.

[5]      The fact that a party voluntarily provides what is sought on an application can be a pointer that the application had merit.   On the other hand, in this case the applicant advised the solicitors acting for the bank that an application for pre- commencement discovery was in contemplation and that such an application would be brought unless the bank provided the information it sought.  The response from the bank’s solicitors was, in part, to advise that they had instructions to accept service of the application.  In due course the respondent filed a notice of opposition to the application.  It said amongst other things that the application was unnecessary. In a memorandum addressed to the court and filed 1 November 2012 counsel for the parties confirmed that the respondent was going to provide the information sought.  I understand that inspection took place of the relevant documents and that these have now been provided or will be provided.

[6]      The circumstances point to the fact that it was necessary for the applicant to bring the application in order to obtain access to the documents sought.   Had the respondent provided documents when first asked to, it would not now find itself exposed to an application for costs.

[7]       I consider that it is fair and reasonable that an award of costs be made to the applicant for preparing, filing and serving the application and attending at any mention of the application called for the purpose of scheduling a hearing and I make an order accordingly.

[8]      The Rules explicitly provide that the costs of carrying out discovery can be ordered when an order is made under r 8.20(2) or 8.21(2).  No order was made in this case so there was no jurisdiction to make such an order under 8.22.

[9]      Counsel for the applicant, Mr St John, pointed out that the Rules make it clear that no order can be made unless the steps taken are actually taken pursuant to an order made on the application.  He noted that no order in fact was made in this case.

[10]     It is my view that commonsense and fairness requires that a non-party which has provided discovery should be entitled to the costs of providing that discovery. The rules apart, the non-party will incur the same costs of compliance whether it does so pursuant to an order or not.   If the applicant has to go to the trouble of obtaining an order it will be compensated in that regard by a costs order on the application.  The question of whether or not the respondent voluntarily complied is relevant to the question of costs on the application but not to the costs of actually providing the discovery.

[11]     The court has authority to make such orders as it considers just where the

Rules make no provision.  This is such a case.  I consider that the respondent should be entitled to the costs of providing the discovery and I so order.

J.P. Doogue

Associate Judge