Oakridge Estate Limited v Vision Securities Limited HC Auckland CIV 2005-404-5919

[2007] NZHC 2021

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2005-404-5919

BETWEEN  OAKRDIGE ESTATE LIMITED Plaintiff

AND  VISION SECURITIES LIMITED First Defendant

AND  VISION SENIOR LIVING LIMITED Second Defendant

AND  PETER JOHN BOURKE Third Defendant

AND  JOHN LLEWELLYN JACKSON Fourth Defendant

Hearing:         (on papers)

Judgment:      22 August 2007 at at 11 a.m.

JUDGMENT OF ASSOCIATE JUDGE DOOGUE

This judgment was delivered by me on

22.08.07 at  11 am, pursuant to

Rule 540(4) of the High Court Rules.

Registrar/Deputy Registrar

Date……………

E-mail:
D E Smyth - [email protected]

I Thain – [email protected]

Solicitors:
Simpson Dowsett Mackie, PO Box 27-240, Auckland

DLA Phillips Fox, PO Box 160, Auckland

OAKRDIGE ESTATE LIMITED V VISION SECURITIES LIMITED AND ORS HC AK CIV 2005-404-5919

22 August 2007

Costs

[1]      On 2 July 2007 I noted in a minute that the plaintiffs having decided to discontinue these proceedings, the only remaining matter that required resolution was that of costs.  I directed that if the parties were not able to agree costs, then they should file memoranda.  The defendant has filed a memorandum.  The plaintiff has not.  I propose to now consider the issue of cots.

[2]      The first point concerns whether the costs for the various stages should be awarded on a “C” band time allocation or that which is appropriate for the “B” band. At paragraph 4 of his memorandum, Mr Thain has set out four instances where submits there should be a departure from time band B.  He does so on the basis that because of the amount  of work involved in completing the step in question, an allocation to time band “B” will not sufficiently recognise in terms of costs the defendants’ entitlement.   On reviewing the file I agree with him on all of these except for the item listed under 4.13, “opposition to interlocutory application to set aside orders for security for costs”.  In fairness to the plaintiff I do not believe that the volume of work or complexity of the  task  would  require  recognition by an allocation to time band “C”.  With that exception, I approve the claims to the extent that they are based on Rule 48B and schedule 3.

[3]      The next part of his submissions are directed towards seeking increased costs. The ground for making an application for increased costs is that there were delays and non-compliance with orders on the part of the plaintiff.  It is submitted that the plaintiff’s conduct throughout the proceeding was a misuse of the Court’s processes and that it contributed unnecessarily to the time and expense of the proceeding.  It was submitted that the plaintiff failed to actively pursue its own case.

[4]       I have been invited to make some assessment of the merits of the plaintiff’s claim even although there was no hearing before this Court the matter has been the subject of a determination by an arbitrator.  As I understand it the arbitrator decided against the plaintiff.  I do not consider that I have sufficient information to enable

me, in fairness, to reach a conclusion that the combination of circumstances relied upon by the defendants would justify an uplift of costs as proposed.

[5]      Overall, I do not consider that the plaintiff’s conduct of the proceedings here was sufficiently derelict to justify an order for increased costs.    I therefore decline to increase the costs in the way suggested.

Associate Judge Doogue