Thompson v Continental Car Services Limited - [2018] NZHC 2009

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-3124

[2018] NZHC 2009

BETWEEN
MARTYN LLOYD THOMPSON

Plaintiff

AND

CONTINENTAL CAR SERVICES LIMITED

Defendant

On the papers:

Counsel:

E St John for Plaintiff

D Bullock for Defendant

Judgment:

8 August 2018

JUDGMENT OF CHURCHMAN J (COSTS)

[1] I gave a judgment dated 22 June 2018 in which I awarded the plaintiff damages of $130,000. I invited the parties to agree costs but, in the absence of agreement, the plaintiff had 14 days to file submissions and the defendant 14 days from service of the plaintiff’s submissions to reply.1

[2] The plaintiff seeks costs and disbursements of $62,908.25 in relation to the proceedings and interest on the judgment sum from the date of the breach to the date of judgment totalling $12,460.00. He also seeks an uplift of 50 per cent on scale costs.

[3] The defendant, while taking no issue with the payment of disbursements and accepting that the plaintiff is entitled to costs following the event, disputes several aspects of the costs claim. It submits that:

1 Thompson v Continental Car Services Ltd [2018] NZHC 1507 at [265].

THOMPSON v CONTINENTAL CAR SERVICES LIMITED (COSTS) [2018] NZHC 2009 [8 August 2018]

(1)a “B” time allocation is not appropriate for all steps claimed and some items should be allocated to time band “A” because they involved a comparatively small amount of time;

(2)as the proceedings should have been brought in the District Court, costs should only be awarded on the District Court scale;

(3)certain steps in the proceeding resulted in it incurring wasted costs that should be taken into account; and

(4)although the hearing was scheduled for 4 days, the parties were not in Court for that full time and an appearance costs allocation of 4 days is, therefore, not justified.

District Court costs

[4] The defendant submits that, as the proceedings should have been brought in the District Court, the plaintiff’s costs entitlement should be calculated under the District Court Rules. This submission is made in reliance on r 14.13 of the High Court Rules, which provides as follows:

14.13 Proceedings within jurisdiction of District Court

Costs ordered to be paid to a successful plaintiff must not exceed the costs and disbursements that the plaintiff would have recovered in the District Court if the proceeding could have been brought there, unless the court otherwise directs.

[5] The plaintiff says it was necessary to bring the proceedings in the High Court because specific performance was sought which could not be ordered by the District Court for an issue in excess of its monetary jurisdiction. However, in his oral opening submissions the plaintiff confirmed that specific performance was no longer being sought and that he was only seeking damages in the sum of $130,000. A claim for a sum of that amount would have been well within the jurisdiction of the District Court.

[6] The plaintiff argues that it is quite conventional…

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.

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Details

Case: [2018] NZHC 2009
Decision Date: 8 August 2018

CaseChat Overview and Summary

The case of Thompson v Continental Car Services Limited involved a dispute over a claim for damages for breach of contract. The plaintiff, Martyn Lloyd Thompson, sued the defendant, Continental Car Services Limited, seeking damages for the failure to deliver a vehicle. The matter was heard in the High Court of New Zealand, Auckland Registry. Following a judgment awarding damages of $130,000 to the plaintiff, the court turned to the issue of costs. The plaintiff sought costs and disbursements totalling $62,908.25 and interest on the judgment sum. The defendant disputed several aspects of the costs claim, arguing that some costs should be allocated to a lower time band, that the costs should be calculated under the District Court scale, that there were wasted costs that should be taken into account, and that the appearance costs allocation was excessive.

The court found that the claim should have been brought in the District Court, not the High Court, as the amount sought was well within the District Court's jurisdiction. As a result, costs were to be calculated under the District Court Rules. The court also accepted the defendant's submissions that some steps should be allocated to a lower time band due to the small amount of time involved. Regarding wasted costs, the court held that the defendant's failure to disclose documents led to increased costs for the plaintiff and did not warrant an uplift in costs. However, the defendant was entitled to costs for its statement of defence. The court declined to award interest on the judgment sum, finding it would not be appropriate given the nature of the damages awarded.

Ultimately, the court awarded costs under the District Court Rules of $25,187 and disbursements of $17,639.25 in favour of the plaintiff, with no uplift on costs. No interest was awarded on the judgment sum.

Orders