Summit Building Services v Baxter - [2020] NZHC 1298

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-794

[2020] NZHC 1298

BETWEEN
SUMMIT BUILDING SERVICES

Appellant

AND

VICKI JILL BAXTER AND LANCE OWEN BAXTER

Respondents

Hearing: On the papers

Appearances:

M G Keall for Appellant Respondents in person

Judgment:

11 June 2020

JUDGMENT (No 2) OF PAUL DAVISON J

[Re Application for recall of orders for Costs]

This judgment was delivered by me on 11 June 2020 at 1:00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Fryers Joyce, Auckland

SUMMIT BUILDING SERVICES v BAXTER [2020] NZHC 1298 [11 June 2020]

Introduction

[1] On 12 February 2020 I delivered my judgment in this matter.1 Summit Building Services Limited (the appellant) was found to have owned the copyright subsisting in the house plans, and the respondents were found to have infringed that copyright. The appeal was allowed, and judgment entered for the appellant against the respondents for $5,500 (being the amount equivalent to what was deemed a notional royalty fee for the use of the plans).2 The appellant was also found to be entitled to costs on a 2B basis with disbursements.

[2] The judgment directed that in the event the parties were unable to agree on costs, the appellant was to file and serve a costs memorandum within ten working days of the date of delivery of the judgment. The respondents were directed to file and serve their costs memorandum within seven working days following their receipt of the appellant’s costs memorandum.

[3] On 19 February 2020, the respondents filed a brief “memorandum querying re-issuance of judgement” [sic], to which they attached documents which they said prove that on 14 November 2012 they had paid the appellant $1,500.00 for the preparation of a scheme plan for the home. Although not stated as such, it appears that on the grounds that they had already paid $1,500.00 for the preparation of a scheme plan, the respondents were seeking an order for recall of the judgment. However, the respondent made no submissions on the issue of costs.

[4] By memorandum dated 11 March 2020 the appellant replied to and opposed the respondents’ application for recall of the judgment. In this memorandum the appellant set out its claim for costs on a 2B basis and also detailed its claimed disbursements. The appellant claimed costs totalling $17,447.00 and disbursements totalling $1,013.98. The appellant also sought a direction by the Court that the security for costs lodged by the appellant in the sum of $1,115.00 be repaid to the appellant. The appellant also sought an order quashing the order for costs in favour of the respondents made by the District Court.

1 Summit Building Services v Baxter [2020] NZHC 143.
2 At [62].

[5] The respondents did not file a memorandum in response to the appellant’s claim for costs and disbursements.

[6] In my Minute dated 16 April 2020, I declined the respondents’ application for recall of my judgment.…

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 Summit Building Services v Baxter

Details

AGLC: Summit Building Services v Baxter [2020] NZHC 1298
Case: [2020] NZHC 1298
Decision Date: 11 June 2020

CaseChat Overview and Summary

In Summit Building Services Limited v Baxter, the High Court was called upon to decide whether an earlier order awarding costs to Summit Building Services Limited (the appellant) should be recalled. The respondents, Vicki Jill Baxter and Lance Owen Baxter, had argued that the court should take into account a settlement offer they made to the appellant under the Calderbank principles when determining the costs awarded. The respondents had made this offer 21 months prior to the trial of the matter in the District Court, proposing a settlement by payment of a sum only $500 less than the amount ultimately awarded to the appellant on the appeal. The respondents argued that their offer was made reasonably early in the proceedings, was close to the value or benefit of the judgment obtained, and was a genuine compromise, and therefore should have been taken into account by the Court. The appellant argued that the offer was not relevant to the issue of costs awarded to it in relation to the appeal, and that even if it was relevant, the offer did not represent a genuine compromise.

The court found that the respondents’ Calderbank offer was relevant to the determination of the appeal costs, as the offer was made for the purpose of resolving the dispute between the parties over the appellant’s claim that the respondents had breached its copyright, and that dispute continued to be litigated between the parties by means of the appeal. However, the court found that the settlement offer did not present a commercially realistic compromise of the appellant’s claims. While close to the amount of damages awarded by this Court, the offer did not account for or compensate the appellant for the significant legal costs it had already incurred prior to the offer being made, and did not include any acknowledgement that the respondent had breached the appellant’s copyright interest in the house plans. Accordingly, the court dismissed the application for recall of the award of costs.

The court confirmed and allowed the appellant’s claim for costs of $13,863.00 and disbursements of $1,013.98, and directed the parties to file memoranda with the District Court for determination of the costs in connection with the proceedings in that Court, in the event that they are unable to agree on costs in the District Court. The court also made an order that the costs of the parties in relation to this application and the previous application for recall of the judgment, are to lie where they fall.

Orders