Samson Corporation Limited v Ryan Investment Group Limited

[2020] NZHC 370

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-2538

[2020] NZHC 370

UNDER

Part 13 of the High Court Rules

BETWEEN

SAMSON CORPORATION LIMITED

Plaintiff

AND

RYAN INVESTMENT GROUP LIMITED

First Defendant

ADITYA SUDAN
Second Defendant

KANIKA SUDAN

Third Defendant

Hearing:

On the papers

Appearances:

N W Coyle for the Plaintiff

Second and Third Defendants in person (and as directors of the First Defendant)

Judgment:

3 March 2020

JUDGMENT OF GAULT J

(Costs)

This judgment was delivered by me on 3 March 2020 at 4:00 pm pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

……………………………………

Solicitors / Parties:

Mr S McAnally and Mr N W Coyle, Keegan Alexander, Auckland Mr A Sudan and Mrs K Sudan

SAMSON CORPORATION LTD v RYAN INVESTMENT GROUP LTD [2020] NZHC 370 [3 March 2020]

[1]    Following my order by consent that the defendants deliver possession of a property to the plaintiff, I indicated that I would give the parties an opportunity to file memoranda and then deal with the costs on the papers.1 As I stated, costs normally follow the result but, in the Court’s discretion, the circumstances of the consent order may be relevant.

[2]Mr Coyle, for the plaintiff, seeks 2B costs of $9,321 plus disbursements of

$1,750, notwithstanding that as against the first defendant he submits the plaintiff would be entitled to indemnity costs pursuant to the deed of lease. There is apparently only a relatively small difference between actual and scale costs.

[3]    Mr Coyle submits there is no reason to depart from the ordinary rule that costs follow the event. He relies on the Supreme Court’s reference to the longstanding principle that, unless there are exceptional reasons, costs should follow the result.

That is, the loser, and only the loser, pays.2

[4]    The defendants filed a memorandum submitting that the plaintiff took possession of the property illegally, with resulting loss, and stating that they tried to resolve the matter. It appears the defendants failed to serve their memorandum on the plaintiff, prompting the plaintiff to file a further memorandum.

[5]    The Court is not in a position to determine the validity of the plaintiff’s re-entry into possession in the context of this application for costs. I simply record that the possession order was made by consent without prejudice to the defendants’ position on the merits of the plaintiff’s claim, including as to the validity of the purported cancellation. The defendants are free to pursue a damages claim, as the plaintiff is free to pursue unpaid rent.

[6]    While the plaintiff obtained the order for possession by consent, I consider that the costs of the summary judgment application should follow the result in the normal way. The circumstances, including the defendants’ consent to the order, are not

1      Samson Corporation Ltd v Ryan Investment Group Ltd HC Auckland CIV-2019-404-2538, minute dated 11 February 2020.

2      Shirley v Wairarapa District Health Board [2006] NZSC 63, [2006] 3 NZLR 523 at [19].

exceptional. Even if the cancellation was invalid, the defendants acknowledged they were not in a position to pay ongoing rent.

[7]    The cost items claimed by the plaintiff are allowed. However, I consider that, in the circumstances, costs for these steps in the proceeding should be calculated on a 2A basis. Accordingly, the time allocations reduce to 2.2 hours.3 2A costs total $5,258.

Result

[8]The plaintiff is entitled to costs against the defendants, jointly and severally, of

$5,258 plus disbursements of $1,750.

Gault J

3      1.6 + 0.3 + 0.3 = 2.2 hours.