Ready Mark Limited v Grant

[2013] NZHC 485

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-008264 [2013] NZHC 485

BETWEEN  READY MARK LIMITED Plaintiff

ANDJILL GRANT Respondent

Hearing:         (On the papers) Counsel:          T Chubb for Appellant

M Vickerman for Respondent

Judgment:      13 March 2013

COSTS JUDGMENT OF VENNING J

This judgment was delivered by me on 13 March 2013 at 5.00 pm, pursuant to Rule 11.5 of the High

Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Foley & Hughes, Auckland

Dyer Whitechurch, Auckland

Copy to:            T Chubb, Auckland

M W Vickerman, Auckland

READY MARK LIMITED V GRANT HC AK CIV-2010-404-008264 [13 March 2013]

[1]      On 18 November 2011 this Court delivered a judgment allowing in part Ready Mark Limited’s (Ready Mark) application for review of the decision of an Associate Judge striking out its claim against Ms Grant.  Costs were reserved at the request of counsel.

[2]      Ms Grant then sought leave to appeal to the Court of Appeal.   Leave was declined.   However, Ready Mark pursued its appeal against the Associate Judge’s refusal  to  grant  summary  judgment  to  the  Court  of Appeal.    The  appeal  was dismissed with the Court of Appeal making it clear in its finding that if Ms Grant had taken an appeal to the Court against the decision reinstating the claim in part Ms Grant would have succeeded.

[3]      Ms Grant now seeks costs.  Counsel obtained an order for costs with an uplift in the Court of Appeal based on a Calderbank offer.

[4]      Counsel for Ready Mark opposes the application for costs and submits the costs should lie where they fall as neither party took steps to enforce the costs in this Court pending the hearing in the Court of Appeal.  Alternatively, if costs are to be awarded Ready Mark’s counsel submits they should be no more than on a standard

2B  basis  with  no  uplift  and  seeks  an  adjustment  for  a  case  management memorandum and the hearing time.

[5]      Rule 14.1 confirms that all matters in relation to costs are at the discretion of the Court.  In the present case, while Ready Mark succeeded in part in its application for review before this Court, given the Court of Appeal decision, even that limited success was a pyrrhic victory.   Ready Mark cannot pursue the proceedings.   The corollary of the Court of Appeal’s decision is that Ready Mark should not have brought the application for review.  In those circumstances Ms Grant is entitled to an order for costs. There is no bar to her seeking the costs now.

[6]      The remaining issue is whether there should be an uplift.   The Court of

Appeal allowed an uplift on the basis that Ready Mark refused an offer both prior to

the issue of proceedings and after Ms Grant had filed the opposition to the summary judgment and application to strike out.

[7]      Counsel for Ready Mark opposes any uplift on that basis submitting that the offer was made prior to the first call of the summary judgment proceeding and before any doubt had been cast on Judge Ryan’s minute.   When considering the reasonableness or otherwise of the rejection it must be assessed at the time the offer was made.1

[8]      Ready Mark should have accepted the offer.  The justification for the delay is in part that, when the offer was made no issue had been raised regarding the correctness of the District Court Judge’s minute.  However, Ready Mark should have been  fully aware of the  litigation  risks  given the findings  in  the District  Court judgment.  Even on the basis of the claim as it was left following the hearing before this Court there was no certainty in the matter.  In the circumstances, and bearing in mind the clear view the Court of Appeal had on the matter, I accept counsel for Ms Grant’s submission that r 14.6(3)(v) applies.  Ready Mark failed to accept an offer without reasonable justification. An uplift is appropriate.

[9]      However, I accept the submission for Ready Mark that as the hearing only occupied three-quarters of a day and it was an interlocutory hearing the associated costs should be calculated on the basis of a three-quarters of a day rather than a full day.

[10]     Counsel for Ready Mark also raised the issue of the preparation of the case management memorandum.  While it may have been prepared by counsel for Ready Mark the memorandum still required consideration and confirmation by counsel for

Ms Grant.  I allow the claim for that.

1      New Zealand Sports Merchandising Ltd v DSL Logistics Ltd HC Auckland CIV-2009-404-5548,

19 August 2010.

Result

[11]     The respondent Ms Grant is to have costs against Ready Mark in the sum of

$7,314.00 calculated as follows:

Preparation of opposition  0.6

Case management memorandum  0.4

Preparation for hearing  0.75

Appearance at hearing  0.75

2½ days at $1,880  $4,700

Uplifted by 50 per cent =  $7,050

Together with disbursements of  $264

Total:  $7,314

[12]     Order accordingly.

Venning J