Smallmon v Transport Sales Limited HC Christchurch CIV 2009-409-363

[2010] NZHC 1420

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2009-409-000363

BETWEEN  RJ & AM SMALLMON Plaintiff

ANDTRANSPORT SALES LIMITED First Defendant

ANDGRANT ALAN MILLER Second Defendant

Counsel:         J Moss for Plaintiff

P M James for Defendants

Judgment:      16 August 2010

JUDGMENT OF HON. JUSTICE FRENCH

as to Costs

[1]      In this proceeding, the plaintiffs Mr and Mrs Smallmon sought to recover damages from a New Zealand company Transport Sales Limited and its director over the sale of four Volvo trucks.   The Smallmons had purchased the trucks for their business in Australia but found they were not able to use them in Australia except on a limited basis because of certain regulatory requirements.

[2]      The  statement  of  claim  pleaded  eight  causes  of action.    The  total  claim amounted to AU$341,692.83.

[3]      In  my decision  I dismissed  all  but  one  of  the Smallmon’s  claims.   The successful claim only involved the sum of AU$3993 plus interest.

[4]      I directed that if the parties were unable to reach agreement on costs then submissions were to be filed.

RJ & AM SMALLMON V TRANSPORT SALES LIMITED AND ANOR HC CHCH CIV-2009-409-000363

16 August 2010

[5]      Unfortunately, the parties have been unable to agree on costs and require me to make an award.

[6]      At  the  first  case  management  conference  on  29  May 2009,  both  parties agreed  that  the  matter  was  a  2B  cost  category.     The  successful  defendants accordingly now seek costs on a 2B basis.

[7]      Counsel for the Smallmons however, submits that only 50 per cent of the 2B

scale should be awarded.

[8]      In making that submission, Mr Moss advances the following arguments:

i)The Smallmons are an unfortunate plaintiff and have already suffered considerable losses as a result of buying the trucks.

ii)The  Smallmons  were  successful  in  respect  of  one  of  the claims.

iii)      The defendants were not entirely open with discovery.

iv)While the Smallmons were unsuccessful in a large part of their claim, that turned on a novel point of law.

[9]      I have carefully considered these submissions.

[10]     As I noted in my judgment, it is impossible not to have a great deal of sympathy for the Smallmons.  However, on the other hand, the defendants have been put to considerable expense in relation to a claim that was essentially unsuccessful. The defendants’ expenses included the cost of briefing the evidence of two witnesses in Australia.

[11]     The primary principle is that costs follow the event.  It is also important that costs be predictable and expeditious.  Further, while I accept that issues relating to the claim under the Sale of Goods (United Nations Convention) Act 1994, were novel, there were other causes of action that were patently not sustainable.

[12]     In my view the circumstances including the non discovery of a document are not such as to warrant departure from the usual rules.

[13]     Costs are therefore awarded to the defendants on a 2B basis.

Solicitors:
gca Lawyers, Christchurch
Saunders & Co, Christchurch