Roke Realty Limited v Malones Limited

[2013] NZHC 3063

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-2501 [2013] NZHC 3063

BETWEEN  ROKE REALTY LIMITED Plaintiff

ANDMALONES LIMITED First Defendant

ITA MALONE LIMITED Second Defendant

ITA MALONE Third Defendant

Hearing:                   On the papers

Counsel:                  A Holgate for the Plaintiff

P L Rice for the Defendants

Judgment:                19 November 2013

COSTS JUDGMENT OF BROWN J

This judgment was delivered by me on 19 November 2013 at 4.30 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:      The Conveyancing Shop Lawyers Ltd, Epsom, Auckland

Haigh Lyon, Auckland 1140

Counsel:       A Holgate, Whangarei

P Rice, Auckland 1140

ROKE REALTY LTD v MALONES LTD [2013] NZHC 3063 [19 November 2013]

[1]      I have received memoranda from the plaintiff dated 4 November 2013 and from the defendants dated 13 November 2013.  I address each of the contested items in turn.

Item 2: Commencement of defence

[2]      I   acknowledge   the   points   made   in   paragraph   5   of   the   plaintiff’s memorandum.  However I accept that counsel drafted and filed a second amended statement of defence which served to clarify the defendants’ position and I consider that that justifies an allowance of the normal time allocation of two days for item 2.

[3]      I note that the defendants have withdrawn their claim for 0.6 days under item 9.

Items 10, 11 and 12: Case management

[4]      I recognise the points made in paragraph 7 of the plaintiff’s memorandum. However I accept the point made for the defendants that, regardless of who drafted the consent memorandum, defence counsel acting at the time was still required to consider the issues and the way those issues were framed.   Items 10 and 11 are allowed.  I note that a claim to item 13 is abandoned.

Items 20 and 21: Discovery and listing of documents

[5]      I note the point in paragraph 9 of the plaintiff’s memorandum that it was agreed there was no requirement for formal discovery.  However I consider that an allocation of time for discovery is appropriate even where the process is conducted informally.

[6]      The time allocation for these two items would be four days.  The defendants are prepared to accept two days allowance for items 20 and 21 combined.  I allow two days.

Item 32: Preparation of list of issues, authorities and common bundle

[7]      The plaintiff contends that the defendants cannot claim for a step undertaken by the plaintiff.   However in practice the defendant makes a contribution to the exercise which is reflected in the fact that there is provision in the schedule for defendant’s preparation albeit for a slightly smaller time allocation.

[8]      The defendants indicate they would consent to a reduction to one day for item

32.  I so allow.

Items 33 and 34: Preparation for and appearance at hearing

[9]      The plaintiff accepts the time allocations of three and two days for items 33 and 34 respectively.  However it argues for an off-set in respect of wasted costs.

Wasted costs and the Calderbank letter

[10]     The original fixture was for 12-13 August.   However on the morning of

12 August, when the defendants’ counsel sought and obtained leave to withdraw, the defendants applied for an adjournment of the hearing.   I granted that adjournment but allocated a new fixture date for 29-30 August and the hearing proceeded at that later time.

[11]     At paragraph 12 of its memorandum the plaintiff contends that as a result of the adjournment there was a wasted half day hearing in preparation and that the defendants should bear the wasted costs occasioned by the adjournment.

[12]     The defendants respond that even if the plaintiff’s additional legal costs were caused by some action of the defendants it is wrong in principle that the plaintiff should be able to set-off such additional costs when they were incurred in bringing an unmeritorious claim.

[13]     The defendants further submit that a r 14.10 letter was sent prior to trial but that the plaintiff rejected that offer and elected to proceed to trial and failed.  The defendants do not press a claim for increased costs under r 14.6(3)(b)(v) but state:

In the circumstances, it does not sit well in the mouth of the plaintiff to complain that it incurred additional costs as a result of the trial being adjourned.

[14]     I consider that the plaintiff’s point that the Court allowed the defendants an indulgence and that wasted costs were incurred is fairly taken.   I am prepared to allow a reduction of one-half day to reflect that fact.

[15]     So far as the r 14.10 letter is concerned, as r 14.11(1) states the effect (if any) that the making of an offer under r 14.10 has on the question of costs is at the discretion of the Court.  The proposal in the r 14.10 letter was that the defendants would  accept  a  stated  sum  towards  costs  in  full  and  final  settlement  of  the proceeding in the event that the plaintiff filed a notice of discontinuance.  The letter was dated 9 August 2013 which was the Friday prior to the original fixture date. Having regard to the nature of the offer and the time at which it was made I do not propose to make any further adjustment to the costs calculation arrived at as a consequence of my directions above.

Disposition

[16]     The defendants are entitled to costs on a 2B basis in the sum of $25,870 (being a total of 13 allocated days) with disbursements of $150.

Brown J