Pipitea Mews Body Corporate 81720 v Archaus Architects Limited HC Wellington CIV 2006-485-472

[2008] NZHC 2639

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2006-485-472

BETWEEN  PIPITEA MEWS BODY CORPORATE

81720

Plaintiff

ANDARCHAUS ARCHITECTS LIMITED First Defendant

ANDWELLINGTON CITY COUNCIL Second Defendant

ANDCONNELL WAGNER LIMITED First Third Party

ANDWARREN DAVID VOSS Second Third Party

ANDGRW CONSULTANTS LIMITED Third Third Party

Judgment:      23 October 2008 at 11.30 am

JUDGMENT OF ASSOCIATE JUDGE D.I. GENDALL

This judgment was delivered by The Registrar on 23 October 2008 at 11.30 am pursuant to r 540(4) of the High Court Rules 1985.

Solicitors:           Heaney & Co, Solicitors, PO Box 105391, Auckland

Gault Mitchell Lawyers, PO Box 645, Wellington

Collins & May Law Office, Solicitors, PO Box 30614, Lower Hutt

Keesing McLeod, Solicitors, PO Box 10246, Wellington

PIPITEA MEWS BODY CORPORATE 81720 V ARCHAUS ARCHITECTS LIMITED AND ANOR HC WN CIV 2006-485-472  23 October 2008

[1]      Before the Court is an application by the second defendant for costs against the plaintiff with respect to an application brought by the second defendant for further and better particulars of the plaintiff’s claim.

[2]      On 20 March 2008 the second defendant pursuant to r. 185 High Court Rules requested from the plaintiff further and better particulars regarding aspects of the plaintiff’s  claim.    According  to  the  second  defendant,  this  request  was  simply ignored.

[3]      Accordingly, on 14 April 2008 the second defendant filed an application for an order requiring the plaintiff to provide those further and better particulars.

[4]      On 31 July 2008 the plaintiff filed a “memorandum of particulars” which responded to the second defendant’s request.  And, at a directions conference held in this matter on 13 August 2008 counsel for the second defendant advised the Court that it was satisfied with the plaintiff’s response to its application for further and better particulars.

[5]      Subsequent to that 13 August 2008 conference counsel have filed memoranda regarding the costs question.

[6]      The second defendant now seeks costs from the plaintiff on a Category 2B basis in respect of its further and better particulars application.   It does so on the basis  that  its  application  filed  and  served  on  11  April  2008  became  necessary because the plaintiff simply ignored first, the second defendant’s 19 March 2008 request for further and better particulars made in terms of r. 185 High Court Rules and secondly a faxed letter dated 8 April 2008 warning that if no response was forthcoming by 9 April 2008 the application would be filed.

[7]      Counsel  for  the  second  defendant  notes  also  that  in  a  further  directions telephone conference held in this matter on 15 April 2008 counsel for the plaintiff advised  the  Court  that  the  plaintiff  intended  to  answer  the  second  defendant’s

particulars request.   In fact, it seems that this answer was not provided until the plaintiff’s memorandum of particulars was filed on 31 July 2008.

[8]      In the mean time a further telephone conference had taken place on 4 July

2008 and the hearing of the particulars application was set down for 10 July 2008. That hearing did not take place.   As I have noted the plaintiff’s memorandum of particulars was filed but not until 31 July 2008.

[9]      It is for these reasons that the second defendant now seeks costs with respect to the particulars application.

[10]     The plaintiff’s opposition to this costs application appears to be based upon its contention that the second defendant’s particulars application was spurious and unnecessary in that it sought the legal basis for part of the plaintiff’s claim and particulars of evidence.  The plaintiff has complained that the application itself was a “transparent delaying tactic” and would necessarily fail if it went to hearing.

[11]     Notwithstanding  that  the  plaintiff  maintains  that  in  order  to  remove  any excuse for further delay it responded to the particulars request notwithstanding its contention that the request was in fact outside the ambit of the rules.

[12]     It is the plaintiff’s position therefore that as costs should flow only in favour of a successful applicant, the second defendant is not entitled to costs here. The plaintiff says it has effectively succeeded here but it refrains from itself making any application for costs.

[13]     Whilst in my view there is some substance in the arguments advanced for the plaintiff  regarding  the  scope  of  the  further  particulars  sought  by  the  second defendant, to a certain extent the plaintiff has been the author of its own misfortune with regard to the application brought by the second defendant.

[14]     What appears to be undisputed are the following:

(a)On 20 March 2008 the second defendant made a particulars request of the plaintiff under r. 185 High Court Rules.

(b)       This request was ignored.

(c)      On 8 April 2008 counsel for the second defendant faxed a letter to counsel for the plaintiff requesting a response and warning that if this was not forthcoming by 9 April 2008 a formal particulars application would be filed.

(d)       This fax was also ignored.

(e)      On   14   April   2008   the   second   defendant   filed   its   particulars application.

(f)       On 15 April 2008 a directions telephone conference occurred at which counsel for the plaintiff advised that it would answer the particulars request by way of memorandum.

[15]     In my view, it cannot be said here that the second defendant acted improperly in making its particulars request and then, having failed to receive any response, filed the current application on 14 April 2008.  The second defendant is entitled to costs up to that point.

[16]     Thereafter, the issues raised by the plaintiff concerning the particulars request were placed on record at the 15 April 2008 directions conference.   As I see the position the second defendant is not entitled to costs with regard to that application for any steps taken thereafter.

[17]     By ignoring the second defendant’s requests and warnings up to the 15 April

2008 conference, the plaintiff must be seen as opening itself up to the possible costs award sought here.

[18]     That said an order for costs is now made in favour of the second defendant against the plaintiff on a Category 2B basis but only for the sum of $1,120.00.  This is calculated as to 0.6 days for filing of the particulars application ($960.00) together with one quarter of the charge for preparing the memorandum for the 15 April 2008

telephone conference (0.1 of a day at $160.00) given that this memorandum also dealt with a range of other matters for consideration at the conference.

[19]     Costs are therefore awarded to the second defendant against the plaintiff with regard to the further particulars application amounting to $1,120.00.

‘Associate Judge D.I. Gendall’