Pierce v Tripp Rolleston & Co

[2025] NZHC 971

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE

CIV-2023-476-011

[2025] NZHC 971

BETWEEN

KATHERINE ANN PIERCE and HILARY

JANE STUBBS as trustees of the BIDWILL STUBBS TRUST

Plaintiffs

AND

TRIPP ROLLESTON & CO

First Defendant

ALFRED JAMES HENRY WILLIAMSON
Second Defendant

continued over

Hearing:

On the papers

Appearances:

S M Grieve KC and V P Kenworthy for Plaintiffs M E Parker for First Defendant

G K Riach and N M G Wilson for Second, Third and Fourth Defendants

Judgment:

24 April 2025

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 24 April 2025 at 4.00 pm

Registrar/Deputy Registrar Date:

PIERCE v TRIPP ROLLESTON & CO [2025] NZHC 971 [24 April 2025]

ALFRED JAMES HENRY WILLIAMSON, JAMES MATTHEW WILLIAMSON, DONNA LEE WILLIAMSON and

LEANNE MAREE WILLIAMSON as
trustees of the JM WILLIAMSON FAMILY TRUST
Third Defendants

JAMES MATTHEW WILLIAMSON and THEA ANNE WILLIAMSON
Fourth Defendants

[1]        In a judgment of 18 March 2025 I granted the application of the first, third and fourth defendants for leave to apply for summary judgment.1 The application was opposed by the plaintiffs.

[2]        In my judgment I said the first, third and fourth defendants would in the usual course be entitled to costs but if there was a disagreement about that memoranda were to be filed.2 It appears no agreement was reached and the first, third and fourth defendants have applied for costs on a 2B basis. The plaintiffs say costs should be reserved.

[3]        All issues of costs are discretionary but the starting point here is that the defendants were successful on their leave application and costs should in the ordinary course follow the event.3

[4]        Further, r 14.8(1) provides that costs on opposed interlocutory applications shall, unless there are special reasons to the contrary, be fixed at the time the application is determined and become payable when they are fixed.

[5]        The plaintiffs consider special reasons exist why costs should not be determined now. They have referred to Mulholland v Mulholland where the plaintiff failed to obtain leave to apply for summary judgment and Associate Judge Sussock reserved costs.4 The Associate Judge said:

[18]   … [H]owever, I consider that a special reason to the contrary might   be where the application is similar to a summary judgment application in that if ultimately the plaintiff does succeed then it may be appropriate for the defendant to pay for both the unsuccessful application and the substantive proceedings, the Court paying particular attention to the reasons why the plaintiff was unsuccessful in the first case.

[6]        The Associate Judge noted that the leave application failed not because of the delay in applying for summary judgment but upon its merits. She considered that an analogy could therefore be drawn between the case before her and the position that

1      Pierce v Tripp Rolleston & Co [2025] NZHC 557.

2 At [56].

3      High Court Rules 2016, r 14.2(1)(a).

4      Mulholland v Mulholland [2023] NZHC 3853.

usually applies where a party fails to obtain summary judgment. She said costs will generally be reserved when a summary judgment application is refused because:5

… if after a full hearing the merits of a claim are in a plaintiff’s favour then that may mean any costs on an unsuccessful summary judgment application should also be awarded in the plaintiff’s favour.

[7]        I consider the Court should be slow to draw an analogy for costs purposes between applications for summary judgment and for leave to apply for summary judgment out of time. They are different applications, typically raising different issues and r 14.8(3) excludes only summary judgment applications from the ambit of r 14.8.6 However, ultimately what distinguishes this case from Mulholland is that I do not consider that if successful on their claims the plaintiffs could argue they should be awarded costs on the leave application.

[8]        The plaintiffs opposed the leave application on the basis the defendants’ limitation defences had no prospect of success. They filed a substantial amount of evidence directed to that issue. There was no suggestion the plaintiffs were prejudiced by the delay in the defendants applying for summary judgment. As a result, the leave application was in effect a dry run for the summary judgment application that is to follow. The plaintiffs were entitled to oppose the leave application rather than consenting to it, but in doing so the defendants have been put to avoidable costs. I do not see anything unfair or amounting to special reasons in those circumstances to depart from the usual rule that costs should follow the event.7

[9]        There is another factor which I suggest supports the view that applications for leave to apply for summary judgment and for summary judgment should not be conflated for costs purposes. That is r 14.8(2), which provides the Court may reverse, discharge or vary an order for costs on an interlocutory application “if satisfied that the original order should not have been made”.

[10]      I consider r 14.8(2) is relevant because it addresses the Associate Judge’s concern in Mulholland that if the plaintiff was ultimately successful in her substantive

5 At [22].

6      High Court Rules, r 14.8(3).

7      High Court Rules, r 14.2(1)(a).

claim that may mean a costs award on the leave application should have been made in her favour. If that was so, the plaintiff would have redress under r 14.8(2).

[11]      It is appropriate that separate awards of costs are made in favour of the first defendant and the third and fourth defendants. While they all rely on a limitation defence, the claims against them are quite different and it would not have been appropriate for them to have been represented by the same counsel.8

[12]      Counsel for the defendants have provided schedules of the costs sought on a 2B basis. The plaintiffs object to an allowance sought by the defendants for preparing the memorandum on costs. Costs are regularly awarded for filing submissions on costs. The amount claimed is modest and is appropriate.

[13]      The plaintiffs also object to a claim by the first defendant for filing a memorandum requesting leave to appear by AVL. I do not consider the plaintiffs should bear the cost of counsel filing a request that was brief and was required only because the first defendant instructed out of town counsel.

Result

[14]      The first defendant is awarded costs and disbursements on the application for leave to apply for summary judgment in the amount of $6,952.

[15]      The third and fourth defendants are awarded costs and disbursements on the application for leave to apply for summary judgment in the amount of $7,342.

O G Paulsen Associate Judge

Solicitors:

Anthony Harper, Christchurch Harmans, Christchurch

8      High Court Rules, r 14.15.