Ready Mark Ltd v Grant

[2013] NZHC 1916

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-008264 [2013] NZHC 1916

BETWEEN	READY MARK LIMITED Plaintiff
AND	JILL GRANT Defendant

Hearing:	On the papers
Judgment:	30 July 2013

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 31 July 2013 at 4.00 pm

pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date……………………….

READY MARK LIMITED v JILL GRANT [2013] NZHC 1916 [30 July 2013]

[1]      The defendant, Jill Grant, applies for costs in connection with an application for leave to appeal a decision of Venning J, on which she was unsuccessful.

[2]      The history of this  matter lies  in  a decision  of the Family Court  which determed  the valuation  of relationship  property belonging to  Ms  Grant  and  her former husband, Mr Grant.  One of the issues that required determination was the status of a debt owed by Ms Grant to Ready Mark Limited, a company controlled by Mr Grant, for building work.  That debt had originally been left on the basis that it would be taken into account when the couple resolved their relationship property.

[3]      After  the  Family  Court  decision  had  been  given  Ready  Mark  sought repayment of the debt.  Ms Grant maintained that it had been taken into account in the calculation of the Family Court.  It was not specifically referred to in the Family Court decision but, in response to a request for clarification by Ready Mark, Judge Ryan  indicated  that  he  viewed  the  debt  as  an  issue  between  Ready  Mark  and Ms Grant and that he did not have jurisdiction to make any order in relation to it.  He indicated that the claim should be determined by way of summary judgment in the civil jurisdiction.

[4]      Ready Mark commenced proceedings in this Court in respect of both the debt and drawings said to be owed by Ms Grant.   It applied for summary judgment in relation to the building work debt.   Ms Grant applied to strike out the proceeding altogether.   Associate Judge Christiansen dismissed the summary judgment application and struck out the proceeding.   Ready Mark responded by applying to review the decision to strike out and also appealing to the Court of Appeal in respect of the summary judgment application.

[5]      Venning  J  allowed  the  review  in  respect  of  the  building  work  debt  and reinstated that cause of action.  Pending determination of the summary judgment appeal  Ms  Grant  sought  leave  to  appeal  Venning  J’s  decision.    In  doing  so, Ms Grant’s counsel, Mr Vickerman, acknowledged that the prerequisites for leave to appeal were unlikely to be satisfied but that it was, nevertheless, in the interests of justice for leave to be granted.  He was concerned that if Ready Mark’s appeal in

respect of the summary judgment was unsuccessful the matter would nevertheless

return to this Court as a result of Venning J’s reinstatement of that cause of action.

[6]      I refused leave on the basis that, in my view, the Court of Appeal had the power  to  strike  out  the  cause  of  action  as  being  untenable  if  it  dismissed  the summary judgment application appeal.

[7]      The Court of Appeal did subsequently dismiss the appeal.  It is not apparent from the judgment that it was requested to strike out the proceeding reinstated by Venning J but it did note that, in view of its decision on the appeal, that proceeding could not succeed.

[8]      Ms Grant now seeks costs on the unsuccessful application for leave to appeal on a 2B basis ($2,360.06) together with a 50 per cent uplift.  Her reasons are that the Court of Appeal’s decision effectively vindicated her stance in relation to Venning J’s decision,  Ready  Mark  ought  not  have  commenced  the  proceedings  and  that  in October  2012  and  February  2011  she  had  made  offers  to  resolve  the  issue representing slightly less than half of the amount of the debt claimed.

[9]      Ready Mark resists the costs application on the basis that costs should follow the event and that, notwithstanding the effect of the Court of Appeal’s decision, Ms Grant made her application for leave to appeal in the knowledge that she was unlikely to meet the necessary criteria.  Ready Mark seeks its costs on a 2B basis ($2,068) or alternatively proposes that costs lie where they fall.

[10]     I do not accept that Ready Mark should receive costs on this matter.  Nor do I accept that costs should lie where they fall.  Although, strictly, the prerequisites for obtaining leave to appeal were not met, the unusual circumstances mean that I do not criticise Ms Grant for bringing the application.   I do not, however, consider it necessary to impose a 50% uplift.

[11]     There are to be costs on a 2B basis in favour of Ms Grant.

P Courtney J