Shaw v Haven Trustee Limited

[2014] NZHC 264

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-002457 [2014] NZHC 264

BETWEEN

GARY TERRANCE SHAW

Plaintiff

AND

HAVEN TRUSTEE LIMITED Defendant

Hearing:	On the papers
Counsel:	KG Davenport QC and J Wall for Plaintiff KA Muir for Defendant
Judgment:	25 February 2014

JUDGMENT OF ASHER J (Costs)

This judgment was delivered by me on Tuesday, 25 February 2014 at 1.00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

Sellars & Co, Helensville.

Morgan Coakle, Auckland.

KG Davenport QC, Auckland. JW Wall, Auckland.

SHAW v HAVEN TRUSTEE LIMITED [2014] NZHC 264 [25 February 2014]

[1]      I issued  a  judgment  in  this  matter  on  8  November  2013  dismissing  the plaintiff’s summary judgment application.  The parties have been unable to agree on costs and I must determine what costs if any are payable.

[2]      Mr Muir for the successful defendant seeks costs on a 2B basis with an uplift. He submits that scale costs on a 2B basis are $9,651.50, but that the dispute was unsuitable for summary judgment as it involved a family home and family bach and the breakup of a marriage.  The issues were better determined in the Family Court. The principles referred to in NZI Bank Ltd v Philpott that costs of an unsuccessful

plaintiff in summary judgment applications should be reserved, are not an invariable

rule and should not apply in such a context.1

An uplift of one-third is sought.

[3]      Ms Davenport QC on behalf of the unsuccessful plaintiff submits that the scale costs should be limited to those specifically relating to the summary judgment and come to $5,671.50.  She submits that it was reasonable in all the circumstances for summary judgment to be sought.   She also observes that there was a partial success for the plaintiff in that by consent there was an order made for the sale of one of the two properties that were the subject of the summary judgment applications for sale.  She submits that there should be a downwards adjustment in the region of one-half of the scale cost calculation so that the end order should be in the region of

$2,850.

Decision

[4]      There is force in Mr Muir’s submission that in all the circumstances summary judgment was not the appropriate procedure.  Thus, the application was not just lost because the threshold of an arguable defence was crossed.  The application should not have been brought at all.   For this reason I consider that in the circumstances there should be an order for costs in the defendant’s favour.   However, I am not persuaded that there should be any uplift as proposed.

[5]      This is because the defendant is in the usual position of a successful party. There was no particularly culpable factor in the plaintiff’s conduct that warrants a

1      NZI Bank Ltd v Philpott [1990] 2 NZLR 403 (CA) at 405–407.

particular costs uplift.  Insofar as it is unusual for costs to be awarded in favour of a successful defendant on a summary judgment application, the inappropriate nature of the summary judgment application is already recognised by the scale award that will be made.

[6]      There is also force in Ms Davenport’s point that there was at the hearing a significant concession achieved by the plaintiff in that one of the two properties (by far the less valuable one) was agreed to be sold.  This shows that there was some merit in the general position of the plaintiff.

[7]      In the circumstances I am of the view that there should be an order for costs in the defendant’s favour, but it should be no more than the attendances that directly related to the summary judgment.  It should not include the costs of commencing the defence.    Much  of  that  work  would  have  been  necessary in  any event  for  the substantive proceedings.  It has not been wasted.

[8]      I  therefore  fix  costs  in  the  sum  of  $5,671.50.    These  relate  directly  to summary judgment, being costs for filing the opposition to the interlocutory application, preparation of the written submissions and for the appearance.   I also order that reasonable disbursements are to be paid.

Result

[9]      The defendant is entitled to 2B costs from the plaintiff of $5,671.50 together with reasonable disbursements as fixed by the Registrar.

[10]     Both parties have had a measure of success in their submissions and there will be no order for costs on this application.

……………………………..

Asher J