Rocket Surgery Ltd v Goodwin - [2013] NZHC 2667

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CIV-2012-412-000335 [2013] NZHC 2667

BETWEEN ROCKET SURGERY LIMITED Plaintiff

ANDWAYNE ERNEST GOODWIN and MARY ELIZABETH GOODWIN Defendants

Submissions in writing:

Filed - 21 August 2013 (plaintiff)

- 5 September 2013 (defendant)
- 12 September 2013 (plaintiff)
- 18 September 2013 (defendant)

Appearances: D P Robinson for the Plaintiff
A Beck for the Defendant

Judgment: 21 October 2013

JUDGMENT OF ASSOCIATE JUDGE OSBORNE
as to costs

[1] The defendants seek costs on a discontinued proceeding.

[2] The proceeding, in relation to a Mosgiel property (the property), was commenced by Rocket Surgery Ltd (RSL) with a summary judgment application. In October 2012 I granted RSL judgment.1 That judgment was successfully appealed to the Court of Appeal by the Goodwins.2

The discontinuance of the proceeding

[3] On 21 August 2013, the plaintiff discontinued this proceeding. RSL had in the meantime, on 28 June 2013 commenced a new proceeding for an order of
possession of the property.

1 Rocket Surgery Ltd v Goodwin [2012] NZHC 2752.
2 Goodwins v Rocket Surgery Ltd [2013] NZCA 172.

ROCKET SURGERY LIMITED v GOODWIN [2013] NZHC 2667 [21 October 2013]

[4] Rule 15.23 High Court Rules applies. It provides:

15.23 Costs

Unless the defendant otherwise agrees or the court otherwise orders, a plaintiff who discontinues a proceeding against a defendant must pay costs to the defendant of and incidental to the proceeding up to and including the discontinuance.

RSL’s position on costs

[5] Mr Robinson for the plaintiff sought a direction that there be no order as to costs.

[6] He referred to the ruling of the Court of Appeal on costs. Harrison J, delivering the judgment, said:3

In the normal course costs would follow the event. However, while the Goodwins have been successful, we are satisfied that costs should lie where they fall. In our view, even though RSL’s claim was misconceived, this litigation has been generated and prolonged by the Goodwins’ failure to honour the spirit of a family arrangement. Sale of the property is inevitable and the Goodwins’ failure to recognise this inevitability has unnecessarily compounded the costs for both the parties.

[7] Mr Robinson noted that this proceeding was discontinued because RSL was pursuing an application for possession in its new proceeding. The purpose of that new proceeding was to enable the Court to resolve issues as to the respective rights of the parties once and for all.

[8] Mr Robinson referred also to the judgment of Associate Judge Abbott in a related proceeding in which the Goodwins failed to obtain an order that a caveat which they had lodged against the title to the property should lapse.4 Associate Judge Abbott dismissed the Goodwins’ assertion of a continuing beneficial interest in the property. His Honour held:5

Even if some latitude was possible (and it appears that the respondent did not start pressing for sale and recovery of its contributions for another year), there can no longer be any basis for the applicants’ case…

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 Rocket Surgery Ltd v Goodwin

Details

AGLC: Rocket Surgery Ltd v Goodwin [2013] NZHC 2667
Case: [2013] NZHC 2667
Decision Date: 21 October 2013

CaseChat Overview and Summary

Rocket Surgery Ltd brought proceedings against Wayne Ernest Goodwin and Mary Elizabeth Goodwin seeking judgment in relation to a property in Mosgiel. The case was commenced by way of a summary judgment application which was allowed by the Court. The Goodwins appealed the decision of the Court and successfully overturned the judgment. Rocket Surgery Ltd then discontinued the proceedings and brought a new proceeding for possession of the property. The Goodwins sought costs of the discontinued proceeding pursuant to rule 15.23 of the High Court Rules. Rocket Surgery Ltd opposed the costs application, contending that the costs should lie where they fall. The Goodwins submitted that there was no justification for departing from the general rule that a plaintiff who discontinues is liable for costs. The Court found that it was appropriate for an Associate Judge to deal with the costs of the discontinued proceeding and that the presumption under rule 15.23 that a plaintiff who discontinues will pay costs to the defendant may be displaced if there are circumstances which make it just and equitable that the presumption should not apply. The Court found that the appropriate outcome was that the costs of the proceeding should lie where they fall save in relation to the Goodwins’ filing of their opposition and their appearance at the first callover. The Court ordered that the plaintiff pay to the defendants costs and disbursements of $1,732.

The Court ordered that in relation to the proceeding the plaintiff is to pay to the defendants costs and disbursements of $1,732 and that save to that extent the costs and disbursements of the proceeding shall lie where they fall.

Orders