Singh v Potters Park Property Limited

[2015] NZHC 780

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-004276 [2015] NZHC 780

BETWEEN

MAHENDRA SINGH AND GEOFFREY

HUGH BOUCHIER Applicants

AND

POTTERS PARK PROPERTY LIMITED Respondent

Hearing:	On the papers
Counsel:	D G Collecutt for Applicants E St John for Respondent
Judgment:	21 April 2015

JUDGMENT OF FOGARTY J

This judgment was delivered by me on 21 April 2015 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors:

Shean Singh, Auckland

DG Law, Auckland

SINGH AND BOUCHIER v POTTERS PARK PROPERTY LTD [2015] NZHC 780 [21 April 2015]

[1]      The respondent was successful. The respondent filed its submissions on costs on 5 November 2014.  The unsuccessful applicants have been given opportunities to file submissions but none have been filed and served.

[2]      The successful respondent has filed a schedule of costs calculated on a 2B basis, coming to $44,775 for solicitors’ and counsel’s costs, disbursements of $1,200 and experts’ fees of $14,669.69.

[3]      In its submissions the respondent seeks a 50 per cent uplift on all of these items.  It has two bases on seeking an uplift.  The first is that the parties exchanged Calderbank offers. The respondent relies on r 14.6(3)(b)(v) which states:

Failing, without reasonable justification, to accept an offer of settlement whether in the form of an offer under rule 14.10 or some other offer to settle or dispose of the proceeding.

[4]      It is true that the end result for the applicants is materially less than if the offer had been accepted.  But this was a difficult case and I do not think that it could be said that the applicants failed without reasonable justification to accept an offer of settlement. Accordingly, this ground fails.

[5]      The second ground relies on 14.6(3)(b)(i) – (iii) and (d). These rules state:

(b)       The party opposing costs has contributed unnecessarily to the time or expense of the proceeding or step in it by—

(i)       failing to comply with these rules or with a direction of the court; or

(ii)      taking or pursuing an unnecessary step or an argument that lacks merit; or

(iii)     failing,  without  reasonable  justification,  to  admit  facts, evidence, documents, or accept a legal argument; or

(d)       some other reason exists which justifies the court making an order for increased costs despite the principle that the determination of costs should be predictable and expeditious.

[6]      The application relies on the “poor state of the applicants’ case presented at trial”, giving as an example the failure to plead the proposition relied on in the applicants’ opening  address  and  its  theory  of  the  case  that  the  respondent  had

obstructed the applicants’ ability to obtain consent; that the applicants abandoned its claim for reinstatement of the driveway only in closing submissions; the applicants called  no  expert  evidence;  misleading  content  in  their closing submissions;  and Mr Singh acting as a solicitor and being the only witness for the applicants.

[7]      Again, as I have said, this case had some difficulties and I think Mr Collecutt, as counsel, was adapting and responding to these difficulties as they arose.  I do not think that his conduct can be criticised.  I see no basis for granting an uplift under this set of rules.

[8]      Accordingly, there will be an order for costs in the sum of $60,644.69 as calculated in Appendix A to the respondent’s submissions dated 5 November 2014.