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Roebuck v Liddle

Roebuck v Liddle

Case [2023] NZHC 2841 10 October 2023

Costs

Limitation Periods

Discovery & Disclosure

Abuse of Process

Civil Litigation & Procedure

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IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2021-441-74

[2023] NZHC 2841

BETWEEN
JASON GREGORY ROEBUCK and VICTORIA ANN ROEBUCK
First Plaintiffs

JASON GREGORY ROEBUCK, VICTORIA ANN ROEBUCK and
PETER ROEBUCK as trustees of the Tahi Trust
Second Plaintiffs

AND

ROBERT JAMES LIDDLE

First Defendant

AMANDA ELIZABETH LIDDLE
Second Defendant

HASTINGS DISTRICT COUNCIL
Third Defendant

SIGMA CONSULTING ENGINEERS LIMITED
Fourth Defendant

REDHEAD ARCHITECTURE LIMITED
Fifth Defendant

FORMWORKS HB LIMITED
Sixth Defendant

HARDCORE CONCRETE LIMITED
Seventh Defendant

M J FOGARTY PAINTING & DECORATING LIMITED

Eighth Defendant

WYNANDS MASONRY LIMITED

Ninth Defendant

ROEBUCK v LIDDLE [2023] NZHC 2841 [10 October 2023]

REALDEAL ROOFING LIMITED
Tenth Defendant

HAWKES BAY MEMBRANE SOLUTIONS LIMITED
Eleventh Defendant

MITCHELL LEITZ
Twelfth Defendant

WYNANDS MASONRY (2015) LIMITED
Thirteenth Defendant

ANTHONY JOHN MICHAEL WYNANDS
Fourteenth Defendant

GA SCARFE BUILDER LIMITED
Fifteenth Defendant

GRAHAM ALAN SCARFE
Sixteenth Defendant

Hearing: On the papers

Appearances:

J L Bates for Plaintiffs

J K Goodall KC and S P Farnell for Third Defendant

No appearance by or for First, Second or Fourth to Sixteenth Defendants

Judgment:

10 October 2023

JUDGMENT OF ASSOCIATE JUDGE SKELTON

[Costs]

[1] The plaintiffs applied for orders that the third defendant’s statement of defence be struck out, or alternatively, for leave to apply for summary judgment against the third defendant.

[2] In my judgment dated 15 June 2023, I dismissed the plaintiffs’ application for an order that the third defendant’s deponents in respect of the application for strike out

appear for cross examination.1 I reserved costs pending the outcome of the substantive application.2

[3] Subsequently, as recorded in my minute dated 22 June 2023,3 the plaintiffs discontinued their application for strike out of the third defendant’s statement of defence, or alternatively, for leave to apply for summary judgment.

[4] I directed that the parties were to attempt to agree on the costs. However, if the parties could not agree, then memoranda were to be filed and the costs would be dealt with on the papers. The parties have been unable to agree on costs and memoranda have been filed.

Legal principles

[5] Costs are ultimately a matter of the Court’s discretion, the overall objective being to achieve an outcome that best meets the interest of justice.4 That discretion is qualified by the applicable costs rules, contained in pt 14 of the High Court Rules 2016. The primary principle applying to the determination of costs is that costs follow the event – meaning that a party who is unsuccessful pays costs to a party who is successful.5

[6] The Court may order a party to pay increased costs where that party has contributed unnecessarily to the time or expense of the proceeding or a step in it.6 Increased costs may be awarded where there is a failure by the paying party to act reasonably.7 An example is failing, without reasonable justification, to accept an offer of settlement whether in the form of an offer under r 14.10 or some other offer to…

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 Roebuck v Liddle

Details

AGLC: Roebuck v Liddle [2023] NZHC 2841
Case: [2023] NZHC 2841
Decision Date: 10 October 2023

CaseChat Overview and Summary

The case of Roebuck v Liddle concerns a dispute between the plaintiffs and the third defendant, the Hastings District Council, regarding the costs associated with unsuccessful interlocutory applications. The plaintiffs, Jason Gregory Roebuck and Victoria Ann Roebuck, as well as Peter Roebuck as trustees of the Tahi Trust, had applied for orders that the third defendant's statement of defence be struck out or, alternatively, for leave to apply for summary judgment against the third defendant. The third defendant sought 2B scale costs, plus an uplift of 50 per cent for increased costs together with disbursements, while the plaintiffs contended that costs should lie where they fall or be reserved pending the outcome of the trial.

The court examined whether the third defendant was entitled to costs under rule 15.23 of the High Court Rules, which provides that a plaintiff who discontinues a proceeding against a defendant must pay costs to the defendant up to and including the discontinuance, unless otherwise agreed or ordered by the court. The court determined that there was a presumption that the third defendant was entitled to costs unless it found circumstances that made it just and equitable for the presumption not to apply. The court rejected the plaintiffs' argument that costs should lie where they fall or be reserved, finding that the general practice in relation to costs in the context of unsuccessful applications for strike out arising from breaches of discovery orders was not applicable to this case.

The court also considered whether the third defendant was entitled to increased costs. It found that the plaintiffs' applications were not entirely without merit and their conduct was not unreasonable, and that the failure to accept the third defendant's settlement offers was not unreasonable in the circumstances. The court awarded the third defendant costs of $21,271 and disbursements of $7,494, after making certain deductions from the third defendant's schedule of costs and disbursements.

In summary, the court found in favour of the third defendant, the Hastings District Council, awarding them costs and disbursements related to the plaintiffs' unsuccessful interlocutory applications. The court rejected the plaintiffs' arguments for alternative cost outcomes and determined that the third defendant was entitled to costs on a 2B scale basis, with certain deductions made for specific items of cost.

Orders