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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Squair v Cribb

Details

AGLC: Squair v Cribb [2025] NZHC 1549
Case: [2025] NZHC 1549
Decision Date: 12 June 2025

CaseChat Overview and Summary

In the High Court of New Zealand, Christchurch Registry, the case of Squair v Cribb involved a dispute under the Credit Contracts and Consumer Finance Act 2003 and the Contract and Commercial Law Act 2017. The plaintiffs, Brian James Squair and Vicki Ann Squair, along with SMI Projects Limited (in receivership), sought relief against the defendants, Brian Philip Cribb, Waipara Trustees Limited, and Cribb Farming Limited. The matter primarily revolved around the plaintiffs' application for summary judgment, which was later abandoned. The defendants opposed the summary judgment application and sought security for costs, which they successfully obtained.

The primary legal issue before the court was whether the plaintiffs should be liable for costs incurred by the defendants due to the abandonment of the summary judgment application. Counsel for the defendants argued that the plaintiffs should bear the costs of the abandoned application, suggesting that the plaintiffs' decision to seek summary judgment despite knowing the issues were complex amounted to fault warranting such an outcome. The defendants further contended that the principles governing discontinuance of proceedings should apply analogously to the withdrawal of a summary judgment application.

Associate Judge Lester considered the general rule that, in the absence of fault, the party who abandons an application for summary judgment should not be liable for the costs of the application. The judge acknowledged that while there may be circumstances where an application for summary judgment should not have been brought in the first place, this case did not present such clear-cut evidence. The judge found that the merits of the claim regarding the deposit were not so unbalanced as to deem the application for summary judgment unreasonable from the outset. Consequently, the judge decided that the general rule applied, and the plaintiffs were not liable for the costs of the abandoned summary judgment application.

The court ordered that costs in respect of the withdrawn application for summary judgment be reserved.

Orders