Strange aka Petryszick v Casey Farms Limited
[2023] NZHC 3319
•22 November 2023
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CIV-2022-419-0179
[2023] NZHC 3319
BETWEEN PETER MORRISON STRANGE aka PETER MORRISON PETRYSZICK
Plaintiff
AND
CASEY FARMS LIMITED
First Defendant
BROSNA FARMS LIMITED
Second DefendantJOTAC LIMITED
Third Defendant continued over…
Hearing: On the papers Appearances:
Plaintiff in person
D Quinn for the First and Second, Defendants G Bradford for the Third Defendant
B R Webster for the Fourth Defendant
Judgment:
22 November 2023
JUDGMENT OF ASSOCIATE JUDGE BRITTAIN
[costs]
This judgment was delivered by me on 22 November 2023 at 11am.
Pursuant to Rule 11.5 of the High Court Rules.
…………………..
Registrar/Deputy Registrar
Solicitors/Counsel: Purnell Law, Thames
Morgan Coakle, Auckland Coombe & Associates, Paeroa
STRANGE v CASEY FARMS LIMITED [2023] NZHC 3319 [22 November 2023]
W G BROADBENT & CO TRUSTEES LIMITED
Fourth Defendant
RYAN LAW
Fifth Defendant
PB AND BL CASEY PARTNERSHIP
Sixth Defendant
Introduction
[1] On 31 October 2023, I granted applications by the second, third, fourth and sixth defendants for an order striking out the plaintiff’s claim in its entirety, finding that the defendants are entitled to costs.1
[2] The second and sixth defendants seek one joint award of costs, on a 2B basis. The third defendant seeks an award of costs on a 2B basis. The fourth defendant seeks costs on a 2B basis with a 50% uplift on the basis that the plaintiff, Mr Strange, contributed unnecessarily to the time and expense of the proceeding.
[3] Mr Strange was directed to file his submissions on costs by 17 November 2023. He has not filed any submissions on costs. Mr Strange has filed an application for a stay of the judgment and for leave to appeal. I will deal with those applications in a separate judgment.
Legal principles
[4]Rule 14.6(3)(b) of the High Court Rules 2016 (HCR) relevantly provides:
14.6 Increased costs and indemnity costs
(1)Despite rules 14.2 to 14.5, the court may make an order—
(a)increasing costs otherwise payable under those rules (increased costs); or
(b)that the costs payable are the actual costs, disbursements, and witness expenses reasonably incurred by a party (indemnity costs).
(2)The court may make the order at any stage of a proceeding and in relation to any step in it.
(3)The court may order a party to pay increased costs if—
(a)the nature of the proceeding or the step in it is such that the time required by the party claiming costs would substantially exceed the time allocated under band C; or
(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
1 Strange v Casey Farms Ltd [2023] NZHC 3054 at [36].
(iii)failing, without reasonable justification, to admit facts, evidence, documents, or accept a legal argument; or
(iv)failing, without reasonable justification, to comply with an order for discovery, a notice for further particulars, a notice for interrogatories, or other similar requirement under these rules; or
(v)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; or
(c)the proceeding is of general importance to persons other than just the parties and it was reasonably necessary for the party claiming costs to bring it or participate in it in the interests of those affected; 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.
[5] Increased costs may be ordered where there is a failure by the paying party to act reasonably.2
[6] The Court will ordinarily consider whether an uplift is payable in respect of each step in a proceeding. However, where an argument lacks merit, or is inherently unlikely to succeed, increased costs can apply to all steps.
Analysis
[7] I accept the submission of counsel for the fourth defendant that Mr Strange’s claim had no merit, for the reasons set out in the judgment.
[8] Not only did Mr Strange pursue a claim that had no merit, he failed without reasonable justification to accept the legal argument of the fourth defendant, which was presented to him in plain terms in a letter from the fourth defendant’s solicitors dated 21 June 2023, before the fourth defendant took steps in the proceeding.
[9] The fourth defendant’s solicitors wrote to Mr Strange on an open basis. The letter confirmed that the fourth defendant intended to file an application to strike out the claim, and clearly explained the grounds for the application. In particular, that the
2 Bradbury v Westpac Banking Corp [2009] 3 NZLR 400 (CA) at [27].
fourth defendant had never acted for Mr Strange so did not owe Mr Strange a duty of care; Mr Strange had no standing to bring a claim against the fourth defendant; the statement of claim disclosed no reasonably arguable causes of action against the fourth defendant. The letter concluded by inviting Mr Strange to discontinue his claim against the fourth defendant. Regrettably, Mr Strange did not accept that invitation.
[10] Accordingly, I find that the fourth defendant is entitled to costs on a 2B basis, together with an uplift of 50%. I have reviewed the schedule of steps provided by counsel for the fourth defendant. The steps claimed are appropriate.
[11]I enter judgment against the plaintiff for costs on the following term:
(a)the second and sixth defendants are jointly entitled to an award of costs on a 2B basis, together with disbursements, as fixed by the Registrar;
(b)the third defendant is entitled to costs on a 2B basis, together with disbursements, as fixed by the Registrar;
(c)the fourth defendant is entitled to costs of $13,443.75 together with disbursements of $550.
Associate Judge Brittain
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