MV Celebre Ltd v Airwork Flight Operations Ltd - [2015] NZHC 1400

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-001511 [2015] NZHC 1400

BETWEEN
MV CELEBRE LTD

Plaintiff

AND

AIRWORK FLIGHT OPERATIONS LTD Defendant

Hearing: 10 June 2015

Appearances:

S J Neville for plaintiff
S Cook and A Wallace for defendant

Judgment:

19 June 2015

JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE

This judgment was delivered by me on
19.06.15 at 4.30 pm, pursuant to

Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

MV CELEBRE LTD v AIRWORK FLIGHT OPERATIONS LTD [2015] NZHC 1400 [19 June 2015]

Introduction

[1] An application for particular discovery that MV Celebre Ltd (“the plaintiff”) had filed was listed for hearing on a defended basis on 10 June 2015. However, prior to the date of fixture, Airwork Flight Operations Ltd (“the defendant”) and the plaintiff reached agreement which resolved the differences between them concerning what documents the defendant ought to additionally make discovery of.

[2] The remaining issue is that of costs. The arguments for each side and the issue that arises will be considered in the judgment that follows.

Discretion to order costs

[3] The principal point that Mr Cook, for the defendant, made was that the defendant voluntarily handed over documents which fell into some of the categories in regard to which particular discovery was sought. The argument, therefore, was that the defendant ought not to have to pay costs on the application for particular discovery.

[4] In order to correctly analyse the relevance of such a submission, if any, it is necessary to attempt to identify which of the rules and principles that govern costs orders apply in the present case.

[5] Mr Cook himself submitted that the point had relevance with regard to r

14.2(a) of the High Court Rules, which provides that the party who fails with respect to an interlocutory application should pay the costs to the party who succeeds. The submission was that the defendants in this case had not relevantly failed.

[6] It is correct that the terms of r 14.2(a) appear to address a case where the decision was the subject of the decision of the Court leading to an application for costs by the successful party.

[7] However, the rule which governs the position where there has been a discontinuance of a proceeding is also of application. Rule 15.23, which is to be considered shortly, is stated in terms which literally limit its effect to the

circumstances in which a proceeding in its entirety has been discontinued. That rule provides as follows:

15.23 Costs

Unless the defendant otherwise agrees or the court otherwise orders, a plaintiff who discontinues a proceeding against a defendant must pay costs to the defendant of and incidental to the proceeding up to and including the discontinuance.

[8] The underlying principle behind the rule has been applied analogously in circumstances where an applicant has terminated an interlocutory application.1

[9] Assuming, as I do, that r 15.23 is able to be applied analogously to the case of interlocutory applications,…

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: [2015] NZHC 1400
Decision Date: 19 June 2015

CaseChat Overview and Summary

In the High Court of New Zealand, the plaintiff, MV Celebre Ltd, sought particular discovery from the defendant, Airwork Flight Operations Ltd. This application was defended but subsequently resolved by agreement between the parties, leaving only the issue of costs. The defendant argued that it should not be required to pay costs for the discovery application because it voluntarily handed over some of the documents sought by the plaintiff. The court considered whether the rules and principles governing costs orders applied in this case and concluded that it was appropriate to apply Rule 15.23 analogously, which provides that a plaintiff who discontinues a proceeding must pay the costs of the defendant up to and including the discontinuance. The court found that the defendant had conceded the entitlement to the entirety of the relief claimed by the plaintiff, which amounted to a concession that the merits of the case were with the plaintiff. Therefore, the court assessed the plaintiff as the successful party. The court also considered the defendant's criticism of the plaintiff's statement of claim, but found it irrelevant to the question of which party should pay costs on the discovery application. The court concluded that the plaintiff is entitled to an award of costs for steps 22, 24 and 25 under schedule 3.

The plaintiff, MV Celebre Ltd, is entitled to an award of costs for steps 22, 24 and 25 under schedule 3.

Orders