Sayes v Sayes HC Auckland CIV-2009-404-5931

[2011] NZHC 1398

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2009-404-5931

BETWEEN  MAURINE DOROTHY SAYES Plaintiff

ANDSHELLEY ANN SAYES AND SAYES FAMILY TRUSTEE COMPANY LIMITED

Defendant

ANDMICHAEL WENTWORTH SAYES Second Defendant

Hearing:         (on papers)

Counsel:         H Sumich for the Plaintiff

D M Law for the Second Defendant

Judgment:      31 October 2011 at 3:30 PM

JUDGMENT OF WOODHOUSE J (Costs)

This judgment was delivered by me on 31 October 2011 at 3:30 p.m. pursuant to r 11.5 of the High Court Rules 1985.

Registrar/Deputy Registrar

……………………………………

Counsel / Solicitors:
Ms H Sumich, Barrister, Auckland

Ms Kate Langham (for the plaintiff), Kate Langham Law, Solicitors, Auckland

Ms D M Law, Law & Associates, Solicitors, Auckland

Copy to:
Ms H McKee (for the first defendants), Glaister Ennor, Solicitors, Auckland

SAYES V SAYES AND SAYES FAMILY TRUSTEE COMPANY LIMITED HC AK CIV-2009-404-5931 31

October 2011

[1]      The second defendant seeks costs against the plaintiff on a 2B basis in respect of the interlocutory and case management matters referred to in my minutes dated

21, 23 and 31 March 2011. The application is opposed by the plaintiff. [2]   The essence of the procedural history of relevance is as follows:

(a)      On 25 February 2010 a fixture was allocated for the substantive claim for four days commencing on 11 April 2011.  The setting down date was 12 March 2010.

(b)On 14 March 2011 the plaintiff filed an application to discontinue its claim against the first defendant.  This was the claim contained in a first amended statement of claim.

(c)       The application came before me in the Duty Judge list on 21 March

2011.  At the hearing that morning the plaintiff sought leave to file an amended statement of claim.  This caught the defendants by surprise and both needed time to consider the application.

[3]      I therefore made the directions recorded at [5] of my minute of 21 March

2011, as follows:

a)The  first  and  second  defendants  file  memoranda  by  1:00  pm tomorrow, 22 March 2011, recording the positions they take on the proposed amended statement of claim and the positions they take on the current application to discontinue in the light of the proposed amended claim.

b)If either defendant does not oppose the amendment then a statement of defence should be filed.

c)The  application  to  discontinue  and  the  application  for  leave  to amend are both adjourned to this coming Wednesday, 23 March

2011, at 2:15 pm before me.

[4]      At the hearing on 23 March 2011 the plaintiff filed in Court a further draft of its proposed second amended statement of claim.  This contained some changes from the earlier draft handed in on 21 March.   The first defendants did not oppose the

application for leave to file the amended claim.  The second defendant’s position was

summarised in my minute of 23 March as follows:

[5]       Mr Gluestein helpfully filed two memoranda in respect of the second defendant’s  position.    The  first  memorandum  recorded  the  concern  of counsel for the second defendant as to whether they could be ready for a hearing scheduled to commence on 11 April for the reasons summarised in the memoranda.   The second memorandum confirms this concern.   The reason that the second memorandum was filed is that it follows a six hour meeting between Mr Gluestein and Ms Law, the other counsel for the second defendant.   That meeting traversed a range of matters but including the implications for the second defendant if the second amended statement of claim proceeds.

[6]       For reasons Mr Gluestein outlined he, as counsel for the second defendant, is concerned that insufficient time is available between now and

11 April properly to prepare to respond to the amended claim.

[5]      On 23 March 2011 the plaintiff was granted leave to file and serve a second amended statement of claim.   However, because of the fixture commencing on 11

April, and concern as to whether the second defendant would have sufficient time to prepare for the hearing in the changed circumstances, the plaintiff and second defendant were directed to take steps with urgency. This included a direction that the second defendant file a statement of defence to the second amended statement of claim by 29 March 2011. A telephone conference was arranged for 31 March 2011.

[6]      By that date all counsel had agreed that the matter would not be ready to proceed on 11 April 2011.  Accordingly the fixture was vacated.  Further directions were made but these are not relevant to the present application.

[7]      In  opposing  the  second  defendant’s  application,  the  plaintiff  referred  to aspects of the history of the proceeding up to 4 March 2011 and, in particular, to failure by the second defendant to comply with timetable directions and to some other difficulties said to have been caused by steps taken by the second defendant. This included an application by the plaintiff to debar the second defendant from defending the proceeding which resulted in an order for costs against the second defendant, on a 2B basis, of $3,008 (plus a filing fee of $613.33).

[8]      I agree with Ms Law’s submission for the second defendant that, although the earlier history of the proceeding may have some relevance to the question of costs

following determination of the substantive claim (and to the extent that there has not already been an allowance for costs against the second defendant), these matters are not relevant to the application for costs in respect of the matters I outlined above.

[9]      The steps required to be taken by the second defendant in respect of which costs are sought arose because the plaintiff, at a late stage, firstly sought to discontinue against one defendant, for which leave was required, and then effectively changed tack by seeking leave to file an amended claim.  The plaintiff was seeking an indulgence.  The way in which the plaintiff proceeded with these matters required responses from the second defendant when the second defendant would normally have been preparing for a defended hearing, and required the second defendant to take some steps with urgency.  The plaintiff was seeking an indulgence.  The steps taken in the end resulted in the proceeding having to be vacated, or those steps at least materially contributed to the need to vacate the fixture.   There will be some wasted cost for the second defendant.

[10]     In all the circumstances I am satisfied that the second defendant is entitled to costs on a 2B basis and for the items sought.   There is judgment for the second defendant accordingly.

[11]     There is a question whether these costs should be paid now or following final judgment.     Provided  the  plaintiff  does  not  seek  to  recover  the  costs  and disbursements awarded against the second defendant of $3,621.33, the costs awarded in favour of the second defendant against the plaintiff by this judgment are not

payable until the final determination of the substantive claim.

Woodhouse J