Mortimer v Motorsport Logistics Limited - [2013] NZHC 921

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV2011-004-000239 [2013] NZHC 921

BETWEEN WARWICK JOHN MORTIMER and LESLEY ERIN MORTIMER in their personal capacities and as Trustees of THE KARAMAROA FAMILY TRUST and TEKAI INVESTMENTS LIMITED and MORTIMER MOTOR SPORTS LIMITED First Plaintiffs

ANDSEFTON CLINTON GIBB Second Plaintiff

ANDANTHONY EDWARD LE MESSURIER Third Plaintiff

ANDNEIL MCCRUDDEN Fourth Plaintiff

ANDGREGORY THORNTON Fifth Plaintiff

ANDMOTORSPORT LOGISTICS LIMITED Defendant

Hearing: 24 April 2013

Appearances: JEM Lethbridge for the Plaintiffs
M J Dennett for the Defendant

Judgment: 30 April 2013

(RESERVED) JUDGMENT OF ANDREWS J [Application to overturn sealed judgment]

This judgment is delivered by me on 30 April 2013 at 3:30pm pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

Solicitors:
Grove Darlow & Partners : DX CP24049, Auckland – Plaintiffs
Kennedys : DX CP20542, Auckland – Defendant

MORTIMER AND ORS V MOTORSPORT LOGISTICS LTD HC AK CIV 2011-004-000239 [30 April 2013]

Introduction

[1] I delivered judgment in this proceeding on 28 November 2012 (“the judgment”).1 With the exception of a minor aspect of the first plaintiffs’ claim, the plaintiffs succeeded against the defendant. At [81] of the judgment], I said:

Costs should follow the event on a 2B basis, together with disbursements as fixed by the Registrar.

[2] On 12 March 2013 the plaintiffs sealed judgment against the defendant. (“the sealed judgment”). The defendant has applied for an order to “overturn the sealed judgment”. The order is sought on the grounds that:

(a) The sealed judgment includes interest on the amounts each plaintiff was awarded, pursuant to the Judicature Act 1908. The defendant contends that interest was not awarded in the judgment and that, in any event, there was no evidential basis for an award of interest.

(b)The sealed judgment (and the judgment itself) provides for costs to be payable by the defendant on a 2B basis. The defendant contends that the parties intended that submissions were to be filed in relation to costs and that, as a result of “without prejudice except as to costs” offers made before the trial, the plaintiffs are not entitled to any award of costs.

(c) The defendant contends that there are errors in the quantum of the sealed judgment.

Jurisdiction issue

[3] The defendants’ application was brought under rr 11.10 (1) and 11.11 (3) of the High Court Rules. Ms Lethbridge submitted for the plaintiffs that the application could not be brought under either rule. Rule 11.10 (1) is the “slip rule”, under which
a judgment or order may be corrected by the court or registrar who made it, if it

1 Mortimer v Motorsport Logistics Ltd [2012] NZHC 3180.

contains a clerical mistake or an error arising from an accidental slip or omission, or is drawn up so that it does not express what was decided and intended. Rule
11.11 (3) provides that a judgment must not be sealed until an application for recall

(under r 11.9) has been determined.

[4] For the defendant, Mr Dennett submitted…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] NZHC 921
Decision Date: 30 April 2013

CaseChat Overview and Summary

Motorsport Logistics Limited, a defendant, applied to overturn a sealed judgment that was delivered against it by the High Court of New Zealand, Auckland Registry. The plaintiffs, Warwick John Mortimer and Lesley Erin Mortimer, in their personal capacities and as trustees of The Karamaroa Family Trust and Tekai Investments Limited and Mortimer Motor Sports Limited, had successfully sued Motorsport Logistics Limited for damages, including interest, under the Judicature Act 1908. The court was required to decide whether the defendant's application to overturn the sealed judgment could be entertained and, if so, whether any of the three grounds of the application were valid. The first ground was that the sealed judgment included interest on the amounts each plaintiff was awarded, whereas the defendant contended that interest was not awarded in the judgment and that, in any event, there was no evidential basis for an award of interest. The second ground was that the sealed judgment provided for costs to be payable by the defendant on a 2B basis, whereas the defendant contended that the parties intended that submissions were to be filed in relation to costs and that, as a result of "without prejudice except as to costs" offers made before the trial, the plaintiffs were not entitled to any award of costs. The third ground was that there were errors in the quantum of the sealed judgment. The court found that the defendant's application could not be entertained because the sealed judgment had to stand, subject to the parties' appeal rights, as held by Wild CJ in Horowhenua County v Nash (No 2). The court further found that the defendant's first ground was invalid because the sealed judgment accorded with the court's intention to award interest to each of the plaintiffs. The court also found that the defendant's second ground was invalid because the court had jurisdiction to award 2B costs and because the plaintiffs had abandoned their intention to apply for increased or indemnity costs, in the interests of certainty and the avoidance of further costs. The court partially accepted the defendant's third ground because the sealed judgment contained errors in the quantum of the first plaintiff's claim and the currency conversion of the fourth plaintiff's claim. The court ordered the defendant to pay costs to the plaintiffs on the present application on a 2B basis, together with disbursements as fixed by the Registrar.

Orders