Stewart v Stewart

[2021] NZHC 1534

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CIV-2020-454-5

[2021] NZHC 1534

BETWEEN

TIMOTHY DAVID STEWART

First Plaintiff

SIMONE SUSAN STEWART
Second Plaintiff

AND

DAVID ALAN STEWART

First Defendant

JAMES ROBERT STEWART
Second Defendant

JANET DOROTHY STEWART

Third Defendant

JOHN NAYLOR
Fourth Defendant

DAVID ALAN STEWART, JANET DOROTHY STEWART,

JAMES ROBERT STEWART and JOHN NAYLOR

Fifth Defendants

Hearing:

On the papers

Appearances:

J Maassen for plaintiffs

T Stephens and G Richards for defendants

Judgment:

25 June 2021

COSTS JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

[1]                 By application dated 26 March 2021 the plaintiffs sought orders requiring the defendants to provide further discovery.

STEWART v STEWART [2021] NZHC 1534 [25 June 2021]

[2]                 In due course, the application was set down to be heard at 10.00 am on Monday 17 May 2021.

[3]                 Over the weekend of 15 and 16 May 2021 the parties notified the Registry that the application would not be proceeding.

[4]                 Now the defendants seek costs in respect of the application. For good measure, they also take the opportunity to seek costs in respect of two interlocutory matters dealt with during 2020.

The plaintiffs’ 26 March 2021 application for further discovery

[5]                 The defendants provided discovery in December 2020. In March 2021 the plaintiffs’ solicitors or counsel raised a concern about the adequacy of the defendants’ discovery. This concern was raised in the context of correspondence between counsel in relation to other matters. Before anything was resolved the plaintiffs filed and served their formal application.

[6]                 In the context of this costs application by the defendants, counsel for both parties have filed and served an extensive body of material which sets out, and advances competing arguments in relation to, the sequence of events which ultimately lead to the abandonment of the application. The most elementary application of the principle of proportionality in dealing with interlocutory steps in litigation prohibits me from analysing this material in any detail. It would, in any event, serve no useful purpose to do so.

[7]                 The essential point is that, without having exhausted the possibility of resolving any issues that may have existed by engaging with the defendants, the plaintiffs made a formal application for further discovery. Having done so, they did not comply with timetabling directions for the disposal of the same. Ultimately, they found themselves in a position of having to abandon their application because it transpired that, before the Court could sensibly deal with the same, they would need to replead their case.

[8]                 In such circumstances, I am left in no doubt that the defendants are entitled to the costs order they seek.

The plaintiffs’ 29 July 2020 application for further discovery and the defendants’ 23 October 2020 application for particulars

[9]                 Both of these interlocutory matters are now of some vintage. Neither party obviously though it worth pursuing costs at the time. Quite rightly too, as the time involved would have given rise to costs exceeding the scale.

[10]              In my view, the proper course is to reserve the costs of these two interlocutory skirmishes, which will be costs in the cause.

Conclusion

[11]              I make a costs award against the plaintiffs in favour of the defendants in relation to the plaintiffs’ 26 March 2021 application in the sum of $5,019 together with such disbursements as may be allowed by the Registrar.

[12]              I decline to make costs awards in relation to the two other applications referred to in this judgment.

Associate Judge Johnston

Solicitors:

Wadham Partners, Palmerston North for plaintiffs Fitzherbert Rowe, Palmerston North for defendants