Target Painters & Decorators Limited v Fehl

[2020] NZHC 45

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-1968

[2020] NZHC 45

BETWEEN

TARGET PAINTERS & DECORATORS LIMITED

Applicant

AND

PETER JOHN FEHL

First Respondent

OMID CONSTRUCTION MANAGEMENT GROUP LIMITED

Second Respondent

Hearing:

On the papers

Counsel:

M R T Colthart for Applicant

J D McBridge for Second Respondent

Judgment:

31 January 2020

COSTS JUDGMENT OF WHATA J

This judgment was delivered by me on 31 January 2020 at 3.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors:           Rainey Law, Auckland

Greenwood Roche, Auckland

TARGET PAINTERS & DECORATORS LIMITED v FEHL [2020] NZHC 45 [31 January 2020]

[1]                 I have an application for increased costs in this matter. The second respondent successfully defended the judicial review application by the applicant, Target Painters & Decorators Limited. At the end of my judgment I indicated that I was minded to make an award of increased costs by 50 per cent to reflect what I perceived to be an abuse of process.

[2]                 Mr Colthart, however, opposes the application for costs noting, among other things, that the judicial review application was, he says, quite properly attached to the statutory demand proceedings and provided a proper ground to seek to have the related statutory demand set aside. While that may in fact be so, as Mr McBride noted in his submissions, Target contributed unnecessarily to the time and expense of the proceedings by:

(a)Taking or pursuing an unnecessary step or argument that lacks merit; and

(b)failing, without reasonable justification, to admit facts, evidence, documents or accept a legal argument.

[3]                 More specifically, as set out in my judgment, while there was a procedural error, it was not a matter of any substance and never had any prospect of success.

[4]                 In those circumstances, acknowledging that a 50 per cent uplift in effect would be an award of indemnity costs, I make an order in favour of Omid according to 2B scale, increased by 25 per cent for the reasons I have already set out. If quantum cannot be agreed, it is to be fixed by the registrar.