QBE Insurance (International) Limited v Moodie

[2012] NZHC 1595

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-3646 [2012] NZHC 1595

BETWEEN  QBE INSURANCE (INTERNATIONAL) LIMITED

Plaintiff

ANDTREVOR CAMERON MOODIE First Defendant

ANDCOLLEEN JUNE MOODIE Second Defendant

(On the papers)

Counsel:         ML Broad and SR Hiebendaal for plaintiff

GP Denholm for defendants

Judgment:      6 July 2012

JUDGMENT OF ASSOCIATE JUDGE FAIRE [on costs]

Solicitors:           Kensington Swan, Private Bag 92 101, Auckland 1142

Foy & Halse, PO Box 26 218, Auckland

QBE INSURANCE (INTERNATIONAL) LIMITED V MOODIE HC AK CIV-2011-404-3646 [6 July 2012]

[1]      On  4 August  2011  I  entered  judgment  in  favour  of  the  plaintiff  for AUD73,500 and interest AUD10,216.70 plus disbursements of $1,786.07.  Judgment was entered on a consent basis and in accordance with a memorandum as to quantum submitted  by  counsel  for  the  plaintiff.    Costs  were  adjourned  to  2:15pm  on  1

September 2011 to allow the parties to agree or, if no agreement was reached, for further hearing time in relation to costs.

[2]      Counsel  anticipated  agreement  on  costs  might  be reached.   They sought further adjournments.  On 3 November 2011 counsel advised that agreement was not possible.  Directions for the filing of memoranda were made.

[3]      The file, unfortunately, has suffered from considerable delay.  I have issued several minutes seeking clarification.  Some of the delay has been caused by the file not being referred to me on receipt of counsel’s memoranda and, accordingly my comments do not imply a criticism of counsel in this respect.

[4]      What  became apparent  as  I reviewed  counsel’s  memoranda was  that  the plaintiff was seeking a cost order which was outside the normal range of orders that were contemplated by Part 14 of the High Court Rules.  In short, what was being sought was an allowance for costs which were not incidental to the proceeding. Counsel for the plaintiff helpfully referred to the judgment of Williamson J in Bailey v Baths Car Court Ltd (No 2) where his Honour held that a prior District Court proceeding which had been discontinued was a separate proceeding and therefore the costs relating to it were not incidental to the proceeding subsequently issued and for

determination by him in the High Court.[1]

[1] Bailey v Baths Car Court Ltd & Ors (No 2) HC Invercargill A48/83, 27 June 1988.

[5]      The analogy in this case applies equally to proceedings taken in the Supreme Court of New South Wales.   Costs claims in relation to the Supreme Court proceedings were said to be AUD7,958.23 and NZD177.50.  In addition, other costs outside the current New Zealand proceedings and the Supreme Court proceedings

were said to amount to AUD16,906.34 and NZD16,417.69.

[6]      Counsel  for  the  plaintiff  now  acknowledges  that  the  Supreme  Court proceeding costs and the other costs are outside of the ambit of Part 14 of the High Court Rules.  However, counsel submits that they are within the relief sought within paragraph 28(c) of the statement of claim.  Counsel submits, therefore, that they are damages that can justifiably be the subject of a judgment, presumably based on the summary judgment application.

[7]      I do not consider that I would be justified in entering judgment in respect of the two heads of claim in reliance on the order which reserved the question of costs. The  defendants’ notice  of  opposition  to  the  application  for  summary  judgment specifically opposes the entry of judgment in respect of the Supreme Court costs and the other costs.  The notice of opposition clearly put those matters in issue.  Those matters are not covered by the memorandum that was presented to me when I was invited to enter judgment on a consent basis.

[8]      The  Court’s  jurisdiction  to  consider  a  summary  judgment  application  is contained in Part 12 of the High Court Rules.  Rule 12.2 permits the Court to enter judgment if the plaintiff satisfies the Court that the defendants have no defence to a cause of action in the statement of claim or to any part of any cause of action.  The judgment which I entered is for that part of the claim in respect of which there was no opposition advised in the notice of opposition.  That indicates that the Court has never been asked to rule on the merits of the Supreme Court costs and the other costs in the summary judgment jurisdiction.

[9]      Accordingly, what I am faced with is an application for summary judgment that has been dealt with in part only.   Clearly the plaintiff has not abandoned its summary judgment application in respect of the part of the claim that was not the subject of the consent judgment.

[10]     In the circumstances I do not consider it appropriate to deal with costs in respect of part of the matters that have led to judgment on the summary judgment application when there is another part of that application still to be determined on the merits.  The appropriate time to determine what cost order should be made is on the

conclusion of the summary judgment application or at some later time should the

Court determine that that is more appropriate. [11]           Accordingly, I order:

(a)       Costs in relation to the summary judgment already entered remain reserved;

(b)The balance of the summary judgment application is adjourned to the summary judgment list at 2:15pm on 14 August 2012.

JA Faire

Associate Judge