Mudgway v D M Roberts Limited

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV-2012-470-114 [2012] NZHC 1981

BETWEEN MARK SHANE MUDGWAY AND LEE ANN MUDGWAY
Plaintiffs

ANDD. M. ROBERTS LIMITED Defendant

Hearing: 22 May 2012

Appearances: Mr Fisher for plaintiffs
Mr D Simpson for defendants

Judgment: 9 August 2012

JUDGMENT OF ASSOCIATE JUDGE DOOGUE [on Costs]

This judgment was delivered by me on
09.08.12 at 2 p.m., pursuant to

Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Counsel:
Mr M Fisher, Erskine Chambers, Auckland – [email protected]
Mr D M Simpson, Simpson Aspen Law, Tauranga – [email protected]

MUDGWAY V D. M. ROBERTS LIMITED HC TAU CIV-2012-470-114 [9 August 2012]

[1] I refer to the memoranda filed on the following dates by the plaintiffs (13

July 2012) and by defendant (13 July 2012); plaintiffs reply (19 July 2012) and defendant’s commentary on plaintiff’s reply (23 July 2012). The question of which party of either should bear costs should be made on the basis that it reflects the overall justice of the case. The defendant apparently regards it as significant that at the hearing the plaintiffs sought declarations which were in different terms from those sought in the original statement of claim. My view is that such differences as they were did not affect the substance of the plaintiff’s claim. The defendant is the party which failed with respect to the proceedings: Rule 14.2(a).

[2] There does not seem to be any dispute that costs category 2B is appropriate. The defendant has not objected to any aspect of the calculation of costs on a 2B basis which the plaintiff’s counsel put forward and the calculation appearing to be in accordance with the Rules, I order that the defendant is to pay costs in the sum of
$18,009.50. The same comments apply to the disbursements which were claimed of
$1,536.80. They to seem to be reasonable and I make an order that the defendant is to pay the disbursements as claimed.

J.P. Doogue
Associate Judge

CaseChat Overview and Summary

The case of Mudgway v D M Roberts Limited was heard in the High Court of New Zealand, Tauranga Registry. The plaintiffs, Mark Shane Mudgway and Lee Ann Mudgway, brought an action against the defendant, D M Roberts Limited. The dispute centred around issues related to a contract and the associated costs incurred during the litigation process. The matter was heard on 22 May 2012, with Mr Fisher representing the plaintiffs and Mr D Simpson representing the defendants. Associate Judge Doogue delivered the judgment on 9 August 2012.

The primary legal issue before the court was to determine the appropriate costs to be awarded under the circumstances, specifically focusing on whether the defendant or the plaintiffs should bear the costs of the proceedings. The plaintiffs had sought declarations differing slightly from those outlined in the original statement of claim, which the defendant argued as significant. However, the court found that these differences did not alter the substance of the plaintiffs' claims. The court noted that the defendant was the unsuccessful party in the litigation, as per Rule 14.2(a), which typically dictates that the unsuccessful party bears the costs.

The court determined that the appropriate category for assessing costs was category 2B, which was not contested by the defendant. The plaintiffs' counsel had provided a calculation of costs in accordance with the Rules, which was accepted by the court. Consequently, the court ordered that the defendant, D M Roberts Limited, would be liable to pay the plaintiffs' costs amounting to $18,009.50. Additionally, the court approved the disbursements claimed by the plaintiffs, totalling $1,536.80, and ordered the defendant to cover these expenses as well.

In summary, the court ruled that D M Roberts Limited should bear the costs of the litigation, reflecting the unsuccessful outcome of their defence. The decision emphasised the importance of aligning the costs with the overall justice of the case, underscoring the plaintiffs' position as the prevailing party.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established