Navy League Canterbury (NZ) Incorporated v Bell-Thomson

[2014] NZHC 2104

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2013-409-001080 [2014] NZHC 2104

BETWEEN

NAVY LEAGUE CANTERBURY (NZ)

INCORPORATED Plaintiff

AND

SONIA BELL-THOMSON Defendant

Submissions:	Filed 15 July 2014 and 11 August 2014
Judgment:	2 September 2014

JUDGMENT OF GENDALL J AS TO COSTS (Dealt with on the papers)

Background

[1]      At  the  heart  of  this  proceeding  was  a  dispute  between  Navy  League Canterbury (NZ) Inc (NLC) and Ms Sonia Bell-Thompson, driven in no small part by tensions between the president of NLC, Mr Simon Courtney and Ms Bell- Thompson.  It would be fair to say that the dispute centred around the rules of NLC and the impact of those rules on certain meetings of NLC.

[2]      On 31  May 2013 Chisholm J  released  a decision  granting interim  relief before the substantive hearing in this proceeding was to take place.1     Since that decision was released, however, no further steps were taken for over a year.   The decision however according to the NLC achieved the resignation of Ms Bell- Thompson from the Executive Committee and the return of material she held, both of which had been sought in the proceedings themselves.  This led Associate Judge

Osborne to release a minute on 3 June 2014 recording that the claims either needed

to be discontinued, or timetabling needed to be set in place to get the proceeding to a

1      Navy League Canterbury (NZ) Inc v Bell-Thompson [2013] NZHC 1275.

NAVY LEAGUE CANTERBURY (NZ) INC v BELL-THOMSON [2014] NZHC 2104 [2 September 2014]

hearing.  The parties elected the former option and a notice of discontinuance was duly filed.  The only outstanding issue was costs upon which issue the parties have now filed memoranda which have been referred to me.  It is the issue of costs I now address by agreement on the papers.

Documents filed

[3]      I have received and read in full the following documents:

(a)       NLC’s submissions in support of costs, filed 15 July 2014.

(b)Ms Bell-Thompson’s submissions in support of cross-application for costs, filed 12 August 2014.

(c)       Affidavit of Ms Bell-Thompson in support of cross-application, filed

12 August 2014.

(d)      NLC’s reply submissions in support of its application for costs, filed

27 August 2014.

(e)       Affidavit of Robyn Loversidge in support of NLC’s application for

costs, filed 27 August 2014.

For the sake of brevity I do not replicate significant tracts of those submissions or affidavits.  I am fully cognisant of all arguments raised which are incorporated into the decision that follows.

Discussion

[4]      The starting point is that where a plaintiff discontinues a proceeding it is prima facie liable to pay the costs of the defendant.2   However, this presumption may

be displaced if I find that it would not be just and equitable for the rule to apply.3

2      High Court Rules, r 15.23.

3      Rule 14.1; Kroma Colour Prints Ltd v Tridonicatco NZ Ltd [2008] NZCA 150, (2008) 18 PRNZ

973; FM Custodians Ltd v Pati [2012] NZHC 1902 at [10] – [12].

[5]      For the reasons that follow, I am satisfied that this is a  case warranting departure from the presumption, and the certainty and predictability associated with that:

(a)      In the proceeding significant affidavit evidence was filed attesting to the disruptive affect it is said Ms Bell-Thompson had on NLC’s activities.

(b)Some of Ms Bell-Thompson’s actions gave rise to concerns the other executive members of the NLC had over its asset base and other behaviour of Ms Bell-Thompson.  I am satisfied that it might be said issuing these proceedings was reasonably necessary in the circumstances.  However, I do note that these matters were in dispute.

(c)      And, even if mediation had been followed as required by the NLC’s rules, that would not have necessarily satiated NLC’s concerns, and thereby prevented it seeking and obtaining interim relief in this Court. Moreover, the interim relief sought was ultimately granted.

(d)There is a question, but no more than that, as to whether Ms Bell- Thompson has fully complied with Chisholm J’s order in respect of the surrender of documents.

[6]      But for the counterpoints that follow, I would likely have been persuaded in fact to consider making a costs order in favour of the plaintiffs here, though not for the full amount sought by it ($10,213.30):

(a)      The plaintiff has not succeeded in its proceedings, so costs do not follow the event in the ordinary way.4

(b)Ms Bell-Thompson appropriately, in the interests of expediency and cost-saving,  made  certain  without  prejudice  concessions  in  the

proceeding before Chisholm J in which the interim relief was granted.

4      Rule 14.2.

(c)      There is some support for the proposition that there was wider dysfunction in the NLC, for which Ms Bell-Thompson was not the catalyst.

(d)No attempt was made to attend mediation by NLC, despite Ms Bell- Thompson requesting the issues be submitted.  Though NLC claims it is “highly debatable” whether mediation would have been successful, that does somewhat miss the point.  However, this aspect to an extent is somewhat neutralised by my findings in respect of mediation above. Moreover, it is contested by NLC that they did in fact wholly refuse to attend mediation.

[7]      I therefore exercise my discretion and hold that costs are to lie where they fall.   Both parties have raised valid points, which justify departure from the presumption in r 15.23 High Court Rules.   However, I have not been moved to a point  where  I think  it would  be appropriate to  order costs  of any kind  against Ms Bell-Thompson.

Result

[8]      I order that costs are to lie where they fall.

...................................................

Gendall J

Solicitors:

Young Hunter, Christchurch

Dale Lester, Christchurch