Ng v Pauatahanui GS Ltd

In Ng v Pauatahanui GS Ltd, the applicants, Albert Ng and Tina Yuk Hung Ng, sought to cancel their lease with the respondent, Pauatahanui GS Limited, due to alleged breaches of covenant or condition, and sought compensation for those breaches. The respondent opposed the cancellation and applied for relief against the breach under the Property Law Act 2007. The case was resolved through consent orders dismissing the applicants’ claim, with the parties unable to agree on the issue of costs. The respondent argued that they should be treated as a successful party for costs purposes, relying on High Court Rule 15.23. However, the judge found that the rule was not applicable as the proceedings were dismissed by a consent order, rather than a unilateral discontinuance by the plaintiff. The judge noted that in cases where litigation is settled, it is not generally appropriate to treat the party whose proceeding is dismissed as an unsuccessful party for costs purposes. Instead, the parties should resolve the issue of costs as part of the settlement.

The judge applied the principles in Part 14 of the High Court Rules for fixing costs, which generally apply where there has been a judicial determination of the proceeding on the merits. However, in this case, there had been no such determination due to the settlement. The judge considered the approach to costs in cases where there has not been a judicial determination of the proceedings, as discussed in a trio of decisions of the English Court of Appeal. The judge found that it was not possible to determine the likely outcome of the matter from the papers alone, and there was no compelling reason to award costs one way or the other. The judge therefore decided that there should be no order as to costs.

In conclusion, the court dismissed the applicants’ claim by consent order and made no order as to costs. The judge found that it was not appropriate to treat either party as a successful or unsuccessful party for costs purposes, as the proceedings were settled and there had been no judicial determination of the merits. The parties were encouraged to resolve the issue of costs as part of the settlement, and the judge declined to make an order for costs in the absence of a clear winner or loser. This case highlights the importance of parties resolving the issue of costs as part of any settlement agreement, and the potential difficulties in determining costs where there has been no judicial determination of the merits.