Poplawski v Pryde - [2013] NZHC 2042

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CIV 2011-425-000117 [2013] NZHC 2042

BETWEEN ZBIGNIEW JAN POPLAWSKI and STEFAN DAVID POPLAWSKI Plaintiffs

AND

THOMAS McNEIL PRYDE First Defendant

CRUICKSHANK PRYDE Second Defendant

TE ANAU INVESTMENT NO. 1
LIMITED
Third Defendant

Hearing: (On Papers)

Counsel:

P W Michalik for Plaintiffs
M E Parker and A J Nash for First and Second Defendants

Judgment:

13 August 2013

COSTS JUDGMENT OF WHATA J

[1] The plaintiffs were largely successful in their appeal against my judgment1 on the question of liability under the Fair Trading Act 1986.2 Accordingly, as the successful party, costs should ordinarily follow the event.

[2] The defendants, however, contend that the plaintiffs were only partially successful, with both this Court and the Court of Appeal holding that the plaintiffs were contributorily negligent to the tune of 50 per cent. On that basis, the defendants request that the parties bear their own costs in the High Court, or,
alternatively, that the defendants pay the plaintiffs a sum of 50 per cent of the

1 Poplawski v Pryde [2012] NZHC 2011.
2 Poplawski v Pryde [2013] NZCA 229.

POPLAWSKI and POPLAWSKI v PRYDE [2013] NZHC 2042 [13 August 2013]

standard Schedule 2B costs sought, excluding the plaintiffs’ applications for specific

allowances.

Legal framework

[3] Rule 14.1 of the High Court Rules confers a general discretion on the Court to award costs. The discretion should be exercised in accordance with the general scheme of Part 14, particularly rr 14.2 to 14.10.3 When the discretion is exercised outside the general scheme it must be undertaken in a considered and particularised way. This is because:4

... costs orders should allow a litigant with a real argument presented responsibly to approach the Court without apprehension that the predictable costs regime may be departed from if the case fails.

[4] The Court in Holdfast NZ Ltd v Selleys Pty Ltd5 helpfully sets out the following steps that should be followed when assessing costs:

(a) Categorise the proceedings under r 14.3.

(b) Work out a reasonable time for each step under r 14.5. (c) Consider whether extra time is justified.
(d)Step back and assess the overall entitlement to costs, including under r 14.6, dealing with increased and indemnity costs.

The plaintiffs’ claim

[5] The plaintiffs seek 2B costs according to scale. They rely on r 14.2(a), which states:

(a) the party who fails with respect to a proceeding or an interlocutory application should pay the costs of the party who succeeds.

3      Refer Glaister v Amalgamated Dairies Ltd [2004] 2 NZLR 606 (CA) at [24].
4      Bradbury v Westpac Banking Corporation [2009] NZLR 400 (CA) at [94].
5      Holdfast NZ Ltd v Selleys Pty Ltd (2005) 17 PRNZ 897 (CA) at [43]-[48].

The plaintiffs say that they were successful by a comfortable margin, and that the defendants clearly failed.

[6] The plaintiffs acknowledge r 14.7(d), which provides the following reason why costs might not follow the event:

(d) although the party claiming costs has…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Poplawski v Pryde

Details

AGLC: Poplawski v Pryde [2013] NZHC 2042
Case: [2013] NZHC 2042
Decision Date: 13 August 2013

CaseChat Overview and Summary

The plaintiffs in Poplawski v Pryde sought costs following their successful appeal against the defendant’s initial judgment. The plaintiffs argued that they were successful by a comfortable margin and that the defendants clearly failed, and therefore costs should follow the event. The defendants, on the other hand, argued that the plaintiffs were not largely successful, and that they were contributorily negligent to the tune of 50 per cent. They further argued that the plaintiffs’ contribution to their own loss significantly increased the costs of the defendants, and therefore costs should not follow the event.

The court found that the case was fought on two essential issues: whether the defendant was liable for misleading conduct, and if so, whether such liability is diminished or extinguished by the plaintiffs’ own negligence. The plaintiffs were successful in relation to the claim based on misleading conduct, but the defendants were partially successful in establishing a reduction in that liability. The court concluded that the plaintiffs were substantially but not entirely successful and costs should follow the event. The normal costs award should be reduced slightly to reflect that the plaintiffs succeeded in their main argument, but not in their argument that the defendants should pay 100 per cent of their loss.

The court awarded the plaintiffs costs on a 2B basis, reduced by 10 per cent. The quantum of costs was to be agreed upon, and there was no challenge to the 2B qualification. The court did not uplift the costs award as sought by the plaintiffs as arguments about costs are an ordinary incident of proceedings. The court also noted that the plaintiffs elected on appeal to contest not only the primary finding but also the secondary finding of contribution, and they failed on that latter aspect. This meant that the issue of costs in this court had to be revisited. The court's final orders were that the plaintiffs are entitled to costs on a 2B basis, reduced by 10 per cent.

Orders