Schumacher v Summergrove Estates Ltd

[2014] NZHC 3369

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-008357 [2014] NZHC 3369

BETWEEN

PAULINE MARY SCHUMACHER Plaintiff

AND

SUMMERGROVE ESTATES LTD First Defendant

FORERUNNER SYSTEMS LIMITED Second Defendant

DALE BENJAMIN SPEEDY AND JEANNE ELIZABETH MARY SPEEDY Third Defendants

Hearing:	On the papers
Appearances:	J Hunter for Plaintiff D Gay for Defendants
Judgment:	19 December 2014

JUDGMENT OF WOOLFORD J [As to costs]

This judgment was delivered by me on Friday, 19 December 2014 at 3.00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Counsel:            J Hunter, William Martin Chambers, Auckland

DRI Gay, Auckland

PAULINE MARY SCHUMACHER v SUMMERGROVE ESTATES LTD [2014] NZHC 3369 [19 December

2014]

[1]      In a judgment delivered on 12 June 2013, I quashed a decision of Associate

Judge Sargisson, which set aside the defendants’ notices of objection to jurisdiction.1

At the conclusion of that judgment, I allowed the parties to file memoranda on costs if required.   The plaintiff appealed to the Court of Appeal, which dismissed the appeal in a judgment dated 21 August 2014.2   The Court of Appeal dealt with costs in that Court.

[2]      The parties have been unable to agree to costs in the High Court and the defendants have filed a memorandum seeking costs on a 2B basis for both the original proceedings before Associate Judge Sargisson and also for the review of that decision.

[3]      This application is opposed by the plaintiff who says that of the two issues in the review proceeding, the defendants were only successful on one issue.  As such, the plaintiff submits that costs should lie where they fall.

[4]      I do not accept this submission.   While ultimately the decision was only quashed on one issue, the forum non conveniens issue, the defendants were the successful party.  The fact that their argument was based on two alternative grounds does not expose them to costs because only one of those grounds succeeded.  While r 17.7 of the High Court Rules gives me a discretion to reduce costs if I consider that the successful party caused unnecessary expense by pursuing a particular cause of action, I do not consider that this rule applies in the present case.

[5]      The plaintiff also opposes the application for costs on the original proceeding on the basis that a costs order was already made by Associate Judge Sargisson in her Honour’s decision and that this decision should stand.

[6]      I also do not accept this submission.   It was  implicit in the defendants’

application for review that this was to include, if successful, the order for costs. When I quashed the decision of Associate Judge Sargisson, this included the costs

1      Schumacher v Summergrove Estates Ltd [2013] NZHC 1387.

2      Schumacher v Summergove Estates Ltd [2014] NZCA 412; [2014] 3 NZLR 599; [2014] NZFLR

874.

order.  It is therefore appropriate that the costs awarded include this stage of the proceeding.

[7]      The  plaintiff  has  not  challenged  the  calculation  of  costs  set  out  in  the defendants’ memorandum dated 12 July 2013.  I therefore order the plaintiff to pay costs to the defendants on a 2B basis in the sum of $45,073.50 and disbursements in the sum of $1,942.70; that is, a total figure of $47,016.20.

……………………………….

Woolford J