Squair v Cribb

[2025] NZHC 1549

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2025-409-4

[2025] NZHC 1549

IN THE MATTER

of the Credit Contracts and Consumer Finance Act 2003

AND

IN THE MATTER

of the Contract and Commercial Law Act 2017

BETWEEN

BRIAN JAMES SQUAIR and VICKI ANN SQUAIR

First Plaintiffs

SMI PROJECTS LIMITED (in receivership) Second Plaintiff

AND

BRIAN PHILIP CRIBB

First Defendant

WAIPARA TRUSTEES LIMITED
Second Defendant

CRIBB FARMING LIMITED

Third Defendant

Hearing:

On the papers

Counsel:

P J Dale KC for Plaintiffs

T Mijatov, P M Smyth and E Farrell for Defendants

Judgment:

12 June 2025

JUDGMENT OF ASSOCIATE JUDGE LESTER

(costs on abandoned application for summary judgment)

SQUAIR v CRIBB [2025] NZHC 1549 [12 June 2025]

[1]                When this proceeding was commenced, the plaintiffs brought an application for summary judgment. The application was opposed, and the defendants also sought security for costs.

[2]                By the time the security for costs application was heard, the plaintiffs had abandoned the application for summary judgment. The defendants were successful in obtaining an order for security for costs and were awarded costs in respect of that application.1

[3]                Mr Mijatov, counsel for the defendants, has drawn to my attention that I have not yet dealt with his clients’ application for costs on the abandoned summary judgment application.

[4]Mr Mijatov, in respect of costs on the abandoned application, submitted:

Departure from the abandoning party paying costs is not warranted. The plaintiffs sought summary judgment knowing from the outset the issues were complex and would raise factual disputes, a point their solicitor raised in pre-commencement correspondent.

[5]                Mr Mijatov submitted that abandonment after receiving the defendants’ evidence in opposition, invites the inference that the plaintiffs’ assessment was that summary judgment was, or remained, inappropriate.

[6]                To the extent that Mr Mijatov’s submission; “[d]eparture from the abandoning party paying costs is not warranted” is suggested to reflect the law on an unsuccessful application for summary judgment, I must disagree. The topic is discussed in McGechan on Procedure.2 The leading decision is NZI Bank Ltd v Philpott.3 The general  rule is that costs  on an unsuccessful application for summary judgment by  a plaintiff should be reserved in the absence of some fault on behalf of the plaintiff. The authors of McGechan on Procedure note that under the High Court Rules, costs in respect of interlocutory applications are required to be fixed and paid in the absence of special circumstances when they are determined (r 14.8), however, applications for

1      Squair v Cribb [2025] NZHC 827.

2      Jessica  Gorman   and   others   McGechan   on   Procedure   (online   ed,   Thomson   Reuters)  at [HR12.12.08].

3      NZI Bank Ltd v Philpott [1990] 2 NZLR 403 CA.

summary judgment are expressly exempt from this rule under r 14.8(3). However, special circumstances are not required to depart from the Philpott principle.

[7]                In Apostolatos v NZI Co Ltd, costs were awarded because, in the view of the Judge, the plaintiff should have realised at an earlier stage that applying for summary judgment was not warranted or, that if it was warranted, the application ought to have been abandoned soon after the comprehensive notice of opposition and affidavit were filed.4 Here, the application for summary judgment was abandoned before the need for written submissions to be exchanged.

[8]                Mr Mijatov submits that where the application is abandoned, rather than dismissed, the principles in r 15.23 (discontinuance) should apply by analogy. I do not agree. That would create a perverse incentive for a party who had real doubts about the viability of their application for summary judgment to proceed with the application in the expectation that they would be “protected” by the principle in Philpott. Yet, if they took what may well be the more responsible step of withdrawing the application, they would be met with Mr Mijatov’s submission that r 15.23 should apply by analogy.

[9]                Mr Mijatov relies on Roebuck v Liddle as authority for this Court being prepared to apply the costs rule that applies on discontinuance to interlocutory applications.5  However, Roebuck did not concern the application for withdrawal of   a summary judgment. There, the discontinued application was to strike out a third defendant’s statement of defence or for leave to apply for summary judgment.

[10]            Accordingly, I do not accept it is appropriate to draw an analogy from the discontinuance context to the withdrawal of an application for summary judgment.

[11]            That leaves the issue of whether the proceeding was unsuitable for summary judgment from the outset — that is, the application should never have been brought.

4      Apostolatos v NZI Co Ltd HC Wellington CP118/90, 1 June 1990.

5      Roebuck v Liddle [2023] NZHC 2841.

[12]            The summary judgment rested essentially on the proposition that the amount paid as a “deposit” was more than 10 per cent of the purchase price, and therefore the retention of more than 10 per cent was a penalty. I accept Mr Mijatov’s submission that there are a number of factual issues that could make that proposition unsuitable for summary judgment. However, as a starting position the fact that the deposit exceeded 10 per cent would support the plaintiffs’ position. I note that summary judgment  was  not  sought  in  respect  of  two  causes  of  action  that  relied  on     a pre-contractual misrepresentation.

[13]            When discussing the merits of the plaintiffs’ claim in the security for costs judgment, I considered the merits of the deposit claim to be more evenly balanced.    I said:6

Given the level of security held by the vendors over the second plaintiff’s property, it is not clear why the deposit was set at $750,000 and not the usual 10 per cent of the purchase price.

[14]            Given the above statement, I do not consider that I can, in the context of an application for costs in respect of the withdrawal of the application for summary judgment, conclude that the merits of the claim that the deposit was a penalty were such that an application for summary judgment could not have been reasonably contemplated. The merits of the other claims for which summary judgment were sought were less balanced, but I am satisfied this is not a case to depart from the Philpott rule.

[15]            Accordingly, I order that costs in respect of the withdrawn application for summary judgment be reserved.

Associate Judge Lester

Solicitors:

Bytalus Legal, Hamilton (for Plaintiffs) Smyth & Co, Christchurch (for Defendants) Copy to counsel:

T Mijatov, Barrister, Wellington (for Plaintiffs)

P J Dale KC, Barrister, Auckland (for Defendants)

6      Squair v Cribb, above n 1, at [23].