Murphy v District Court at Auckland HC Auckland Civ-2010-404-002015

[2011] NZHC 899

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-002015

UNDER  Part 1 of the Judicature Amendment Act

1972

BETWEEN  JOHN PATRICK MURPHY AND JODEN FINANCE LIMITED (JOINTLY TRADING AS PARIS MOTORS, GREENLANE)

Plaintiffs

ANDTHE DISTRICT COURT AT AUCKLAND First Defendant

ANDTHE MOTOR VEHICLE DISPUTES TRIBUNAL

Second Defendant

ANDSTEPHEN DORAIRAJ AND/OR DIACYN COMPANY LIMITED Third Defendants

Hearing:         On the Papers

Appearances: Plaintiff in Person

P Gunn for First and Second Defendants
S E McCabe for Third Defendants

Judgment:      9 August 2011

JUDGMENT OF WHATA J ON COSTS

This judgment was delivered by Justice Whata on

9 August 2011 at 12.30 p.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors:

Crown Law, PO Box 2858, Wellington 6140

Martelli McKegg Wells & Cormack, PO Box 5745, Auckland

Copy to: Mr J P Murphy and Joden Finance Ltd, PO Box 14 496, Greenlane, Auckland

MURPHY AND JODEN FINANCE LIMITED V THE DISTRICT COURT AT AUCKLAND HC AK CIV-2010-

404-002015 9 August 2011

[1]      In my judgment on this matter of 6 May 2011, I granted judicial review of a decision of the District Court in respect of findings that the plaintiffs misled the third defendant, Mr Dorairaj when a car was sold to Mr Dorairaj.

[2]      I have received detailed submissions on the issue of costs.

[3]      In  short  the plaintiffs seek  costs  in  the  order  of $6,508.82,  including  in relation to filing fees, photocopying, investigation and service.

[4]      The third defendant seeks that I defer any final decision as to costs pending reconsideration of the matter by the District Court.

Assessment

[5]      I consider that the so-called out of pocket costs sought by the plaintiffs are excessive. Turning to each of the claims in order:

(a)      Filing fees – I am not prepared to award any disbursement costs in relation to interlocutory matters or amendments to the statement of claim.   The statements were unnecessarily prolix and largely ill- founded.   I am prepared however to allow for the filing fee of the original statement of claim, together with the setting down fee.

(b)Photocopying, typing – no affidavit evidence was supplied in support of this particular claim.  It appears to be excessive, particularly given that the third defendant provided the relevant bundles.  I also would note that I found much of the material produced by the plaintiffs to be irrelevant  and  unhelpful  and  I  am  not  prepared  to  grant  costs  in relation to such disbursements.

(c)      Case research, obtaining authorities - I have already ruled that there should not be legal costs.   I consider case research  to be in that category. This sum is not approved.

(d)Investigator’s fees – As I intimated in my judgment, I found this information to be wholly irrelevant to the determination of the case.  I make no award in relation to it.

(e)      Service – I do not understand why it is the plaintiffs felt the need to serve papers in any other manner than by postal delivery, facsimile or e-mail to the solicitor representing the third defendant.  These costs are not granted.

(f)      Parking –  I make no  award in  relation  to  parking.    How a local plaintiff arrived at the proceedings is a matter for him.

[6]      On that basis I grant an award limited to (a) above.  I would add that this is a judicial review proceeding and the plaintiff was successful not because of any action on behalf of the third defendant, but because the District Court had not properly set out the basis for its decision and I was of the view that I could not safely allow the judgment to go unattended.

Stay/Issuance

[7]      I see substantial merit in the suggestion from the third defendant regarding stay of my costs judgment.  I consider that Ms McCabe is correct when she says that it would be unjust to force Mr Dorairaj to pay the disbursements costs in advance of the full resolution of the underlying proceedings.  He is not at fault anyway in terms of the decision making process.   I am concerned also that the referral back to the District Court appears to be languishing.  I perceive therefore a genuine prospect of the third defendant being out of pocket for a lengthy period, when ultimately he may succeed on his substantive claim.  I remind the parties also that the third defendant was successful at first instance before the Tribunal.  I did not overturn that decision. In the circumstances therefore I consider the balance of convenience merits that this order lie in Court pending resolution of the proceedings in the District Court.

[8]      I so direct accordingly.

[9]      Counsel for the first and second defendants are obviously correct that costs should not be granted against them, especially as they did not participate in the

proceedings, as was appropriate.

Whata J