Robinson v Whangarei Heads Enterprises Limited
[2017] NZHC 206
•20 February 2017
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CIV-2013-488-223 [2017] NZHC 206
BETWEEN JOHN CLIFFORD WALTER ROBINSON
Plaintiff
AND
WHANGAREI HEADS ENTERPRISES LIMITED
First Defendant
VICTOR LEONARD FREAKLEY Second Defendant
OFFICIAL ASSIGNEE Third Defendant
Hearing: On the papers Counsel:
Plaintiff in person
B A Vautier for the DefendantsJudgment:
20 February 2017
COSTS JUDGMENT OF MUIR J
This judgment was delivered by me on Monday 20 February 2017 at 4.30 pm
Pursuant to Rule 11.5 of the High court Rules.
Registrar/Deputy Registrar
Date:…………………………
Counsel/Solicitors:
B A Vautier, Glaister Ennor, Auckland
Copy to Plaintiff
ROBINSON v WHANGAREI HEADS ENTERPRISES LIMITED [2017] NZHC 206 [20 February 2017]
Introduction
[1] The background to this matter is comprehensively set out in my Minutes of 7
September 2016 and 14 December 2016.
[2] In the second of these Minutes I dismissed the plaintiff’s application for review of a decision of Associate Judge Bell dated 5 May 2016 in which he declined a discovery application by Mr Robinson. I did so following a lengthy hearing on
7 September 2016 at which, in response to a refined application by Mr Robinson, the first and second defendants agreed to the provision of certain documents, albeit reserving their position in relation to relevance and proportionality. Various documents were subsequently provided and an affidavit filed in relation to the second defendant’s inability to locate certain other documents (cheque butts) which the plaintiff had sought.
[3] In dismissing the application I reserved the issue of review of the costs award made by Associate Judge Bell on both the discovery application and a second application also heard by him. That second application was to re-open a previous award of security for costs against Mr Robinson. It was not the subject of review proceedings.
Invitation to “correct” findings
[4] On 28 December 2016 the plaintiff filed a memorandum critical of the second defendant’s alleged inability to provide copies of the relevant cheque butts and suggesting that any affidavit subsequently filed by him confirming such inability would be perjurious. He submitted that the Court should “correct” its findings and “accept the plaintiff’s application for review” with further orders “that penalise the defendants if any further items that should have been disclosed by the defendants come to light in the course of the proceedings and are not disclosed”.
[5] Subsequent to that memorandum the second defendant filed the affidavit referred to confirming that he had diligently searched his records, including those of the first defendant, and that he had been unable to locate the three cheque butts in question.
[6] I decline the plaintiff’s request to “accept the plaintiff’s application for review”. I am in that respect functus officio (meaning, for Mr Robinson’s benefit, that my duty or authority has come to an end). Insofar as Mr Robinson’s memorandum might be considered an informal application to recall I record that none of the grounds set out in Horowhenua County v Nash (No 2)are made out.1
[7] The remaining issues are:
(a) The plaintiff’s application for costs on the review application;
(b) Whether the award of costs made by Bell AJ should be set aside.
Costs on review application
[8] In both my Minutes of 7 September 2016 and 14 December 2016 I indicated my provisional views that costs in relation to the review application should lie where they fall. That position was accepted by the first and second defendants. Although the outcome of the review application was an agreement on their part voluntarily to provide a restricted range of documents, I do not accept that Mr Robinson has any valid claim for costs. The general rule is that in the absence of extraordinary
circumstances no award of costs will be made in favour of a litigant in person.2 Mr
Robinson has not adduced evidence of any extraordinary circumstances such as would justify such an award.
Costs award of Bell AJ
[9] Mr Robinson submits that because of the agreed provision of documents by the first and second defendants the award of costs made by Bell AJ should be vacated.
[10] He submits that he must be taken to have succeeded on his review application and that such success means that there was an effective “draw” on the matters heard
1 Horowhenua County v Nash (No 2) [1968 NZLR 632 (SC) at [633].
2 Re Collier (a bankrupt) [1996] 2 NZLR 438 (CA); Commissioner of Inland Revenue v
Chesterfields Preschool Ltd (No1) [2010] NZCA 400 at [162].
before the Associate Judge with the result that costs should therefore lie where they fell.
[11] Such submission is in my view misconceived. There were two discrete applications before the Associate Judge. Although His Honour awarded costs to the first and second defendants on a global basis, had one application been granted and the other declined it would in my view have been open to the Associate Judge to award costs against the plaintiff on the application declined while making no award on the application granted given the plaintiff’s litigant in person status.
[12] As to whether his costs award on the discovery application should be set aside, I am unpersuaded that I should be so.
[13] Because the first and second defendants voluntarily agreed to provide some documents in response to the review application I adopt as a starting point the principles applicable when parties have settled but are unable to resolve costs issues. In those circumstances the usual rules as to the fixing of costs apply. This requires some determination of the parties’ relative success, even though a final determination
about the merits is not possible.3
[14] The position in the present case is, however, more nuanced for the fact that: (a) Mr Robinson’s discovery application was significantly refined for the
purposes of the review application; and
(b)the argument advanced before me (and in response to which limited voluntary provision was agreed) differed significantly from that recorded by the Associate Judge.
[15] Before the Associate Judge Mr Robinson sought discovery in the following categories:
(a) “All borrowings by Whangarei Heads Enterprises Ltd be disclosed, if any.
3 Uttinger v Baycity New Zealand Ltd [2008] 19 PRNZ 54 (CA). Morris Crock Ltd v Cycletrads
Ltd HC Auckland CIV-2004-404-4764, 5 December 2005.
(b) Proof of the interest paid on the quarry loan. The amounts and where it was declared be disclosed.
(c) Mr Freakley’s present negotiations re the sale of the quarry property and his stated requirements and status of his own loan account to the Robinson Group Ltd be disclosed.
(d) Due to the substantial drop in profit margins in the accounts of Whangarei Heads Enterprises Ltd compared to the previous year, a list of all cash taken by the Respondent for personal use or use to pay cash debts such as wages etc.”
[16] In terms of his amended application for review, the documents sought were as follows:
(a) “as sought at paragraphs (b) and (c) in the application entitled
“Discovery Orders” dated 2 March 2016” being:
(i) “Proof of the interest paid on the quarry loan [and that] the amounts and where it was declared be disclosed”; and that
(ii) “Mr Freakley’s present negotiations re the sale of the quarry property and his stated requirements and status of his loan amount to the Robinson Group Ltd be disclosed.”
(b) of Mr Freakley’s “annual accounts and working papers for the annual accounts for the relevant time period as sought orally by the Applicant at the hearing on 27 April 2016.”
[17] It will be observed therefore that, insofar as the original application sought documents relating to the borrowings by the first defendant or lists of cash taken by the second defendant for personal use or to pay debtors, the application was abandoned on review.
[18] As to the arguments advanced before the experienced Associate Judge he said:
I tried to establish the relevance of the documents Mr Robinson is now seeking. It became apparent during the hearing that Mr Robinson does not require these documents for the causes of action in his current statement of claim. He has in mind suing Mr Freakley for other matters, unrelated to this proceed. Those other claims will include claims for financial relief… After
having listened carefully to him, I am unable to understand how any of the documents are relevant to the causes of action in the present pleading.
[19] By contrast, in his argument before me Mr Robinson contended for relevance within the context of the present proceeding. He also presented a significantly more refined submission. That was particularly so in relation to paragraph (b) of the amended application where, in my minute of 7 September 2016 I record that: “As to the relevance of these documents Mr Robinson charts a somewhat convoluted course”, the details of which I set out in paras [13] – [15] of that minute.
[20] In paragraph [16] I recorded:
I do find this all approaching what must be the limits of relevancy. However, as I indicated in my discussions with Mr Erskine, the case having now been advanced on this basis (unlike the way in which it was advanced before the learned Associate Judge), there is at least an arguable claim in that respect.
[21] In my view the Associate Judge was correct in declining the discovery application as it was then framed and in circumstances where at that stage it was apparent that the documents were sought in respect of other potential claims.
[22] On review, Mr Robinson’s focus on a narrower range of documents and development of an argument supporting (even if far from unequivocally) relevance in the present proceedings has resulted in voluntary agreement to provide documents within certain defined and limited categories.
[23] I am not in that context persuaded that the award of costs made by the Associate Judge should be set aside and decline the plaintiff’s application to do so. The first and second defendants are appropriately compensated on account of the deficient case initially advanced.
Timetable
[24] In my minute of 14 December 2016 I said that I considered the correct course was to set this matter down for a hearing. I imposed a timetable in terms of which Mr Robinson was to file and serve any amended statement of claim by 27 January
2017. I also confirmed all the other timetable directions made by Bell AJ on 24 May
2016. Although Mr Robinson filed his amended statement of claim by 27 January the first and second defendants say he did not serve it by that date. Nor did he seek an extension of time.
[25] In his memorandum dated 3 February 2017 counsel for the first and second defendants requests that the directions made in my minute of 14 December 2016 be “updated either to preclude the final statement of claim or make provision for its late service”. Although the Court expects its timetable orders to be observed and, in the event that is not in future possible, Mr Robinson is to apply to the Court for any relaxation, I take into account that he is a litigant in person and what I see as the advisability of an early trial on the merits without the distraction of further interlocutory skirmishes.
[26] I therefore:
(a) Excuse Mr Robinson’s late service in this instance.
(b)Adopt the balance of the timetable directed at paras 5 – 7 of the minute of Associate Judge Bell dated 24 May 2016.
[27] The Registrar is to allocate a fixture of no more than two days duration following the service of any reply and the close of pleadings.
[28] I again reiterate the comments made by the Associate Judge in paragraph [8]
of that minute in terms of the professional advice Mr Robinson should seek in relation to all steps down to and including the hearing.
Muir J
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