Turner v Davis

[2012] NZHC 381

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV2011-409-002006 [2012] NZHC 381

BETWEEN  RODERICK BRYAN TURNER Plaintiff

ANDALLISTER JOHN DAVIS First Defendant

ANDCLARK BOYCE Second Defendant

ANDJAMES RICHARD RAPLEY Third Defendant

Hearing:         (On Papers)

Counsel:         R B Turner (In Person)

D Turnbull for First and Second Defendants
A Nash for Third Defendant

Judgment:      27 March 2012

JUDGMENT ON COSTS OF WHATA J

[1]      Following requests by the plaintiff to adjourn the hearing of an application for  strike  out  and  for  summary  judgment,  I  adjourned  that  hearing  from  the

8 February 2012 fixture to 23 April 2012.  I did so reluctantly.  The last request for an adjournment occurred after a very clear direction from me that the matter was to proceed on the required date unless the plaintiff had advised the Court that he had obtained counsel by 5 pm Friday, 27 January 2012.  Failing that, the matter was to proceed on 8 February 2012, on the basis that if Mr Turner was going to represent himself, then he had had ample time to prepare for the hearing.  As it transpires he did not retain counsel and sought another adjournment.

[2]      In those circumstances I granted the adjournment together with an order for costs of the defendants to be paid by the plaintiff to reflect the waste of time needed

TURNER V DAVIS HC CHCH CIV 2011-409-002006 [27 March 2012]

to deal with the plaintiff’s belated requests for adjournment.   I now have the memoranda of counsel.  The first and second defendants seek costs of $1,880.  The third defendant seeks costs in the sum of $6,486.

[3]      The plaintiff objects strenuously to a costs award given the background he says to the setting down of a fixture. The plaintiff makes a fair point that the matter was set down quickly. He also makes a fair point that the notice of hearing date occurred just before Christmas. But he is otherwise on weak ground. The critical issue for the plaintiff was that he was not able to retain Counsel. He said that he needed an adjournment to retain Counsel (after more than a month since notice was given, albeit with the Christmas break intervening). I was prepared to give him that indulgence, but on the basis that he do so quickly. He then advised that he was not able to do so. So I indulged him again and adjourned the matter to enable him to retain counsel, rather than have him argue his case. But that second indulgence came at a price because, in my view, that plaintiff has had ample time to get his affairs in order regarding counsel and has failed to do so. The other parties have had to waste their time dealing with his adjournments. While it is not relevant to my original decision to award costs, it appears that counsel has still not been retained. In these circumstances the plaintiff must bear some of the costs of the defendants.

[4]      On  quantum,  with  respect  to  the  careful  and  detailed  submissions  of Ms Nash,  a  costs  order  based  on  actual  attendances  specified  by  her  (even  if allocated  as  per  2B  or  equivalent)  is  not  appropriate  in  this  context.    I  fully appreciate the frustration of the third defendant in having to respond to the adjournments, but a costs order in this context, while reflecting the Court’s concern, is not designed to punish the plaintiff.   Of course, it was entirely a matter for the third defendant as to how it resourced its opposition to any adjournment and I mean no criticism of the third defendant in terms of the level of costs incurred.  However, it is not, in my view overall, appropriate to grant costs of that scale.

[5]      On that basis, having examined the identified attendances, I consider that the costs sought by the first and second defendant better reflect an appropriate costs award in order to respond to the Court’s concerns about the plaintiff’s tardiness.

[6]      Accordingly, there shall be costs in favour of the first and second defendant in the sum of $1,880.  There shall also be an order for costs in favour of the third defendant of $1,880.

Solicitors:

McElroys, Auckland, for First and Second Defendants ([email protected]) M E Parker, Queenstown, for Third Defendant ([email protected])

cc R B Turner ([email protected])