Van de Klundert v Clapperton - [2015] NZHC 1920

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CIV-2014-412-000167 [2015] NZHC 1920

BETWEEN
PIETER MATTHEW VAN DE

KLUNDERT Plaintiff

AND

PAULA GAEL CLAPPERTON Defendant

Submissions filed: 21 May 2105 (Defendant); 16 June 2015 (Plaintiff)

Appearances:

L A Anderson for the Plaintiff
G Mason for the Defendant

Judgment:

13 August 2015

JUDGMENT OF ASSOCIATE JUDGE OSBORNE
as to costs

[1] The defendant, Ms Clapperton, seeks an order of costs and disbursements upon the plaintiff’s (Mr van de Klundert) discontinuance of this defamation proceeding. Rule 15.23 High Court Rules applies so that the plaintiff must pay costs of and incidental to the proceeding unless the Court otherwise orders.

[2] Mr van de Klundert commenced this proceeding by seeking summary judgment on a claim for a declaration that he had been defamed, under s 24
Defamation Act 1992. In a judgment delivered on 10 March 2015, I dismissed this application.1 On 20 April 2015, Mr van de Klundert discontinued this proceeding.

[3] The only remaining issues between the parties relate to costs. This Court must establish, first whether the r 15.23 presumption should stand, and secondly, the
appropriate category of proceedings for costs purposes.

1 Van de Klundert v Clapperton [2015] NZHC 425.

VAN DE KLUNDERT v CLAPPERTON [2015] NZHC 1920 [13 August 2015]

Ms Clapperton’s application

[4] Mr Mason, for Ms Clapperton, submits that there should be an award of costs on a 2C basis, (Category 2 pursuant to r 14.3 High Court Rules, and band B pursuant to r 14.5 High Court Rules), or alternatively the subject of increased costs. Mr Mason submits that there is a “without prejudice save as to costs” offer which this Court should consider when exercising its discretion regarding costs. Alternatively, Mr Mason accepts the Court would award costs on a 2B basis.

[5] The costs sought on a 2C basis amount to $27,760.50, with disbursements of

$1,623.73. If costs are awarded on a 2B basis they will amount to $11,243.50 (plus disbursements).

Mr van de Klundert’s position

[6] Mr van de Klundert opposes costs. Mr Anderson, for Mr van de Klundert, submits that this is a case where costs should not follow the discontinuance for three reasons:

(a) Ms Clapperton’s conduct reflected a combative response to Mr van de Klundert’s grievance, a stance which prevented settlement and occasioned an extraordinarily high level of costs incurred by Ms Clapperton.

(b)Although Ms Clapperton refused to make the retraction requested by Mr van de Klundert, she made a partial correction after the proceedings had been issued. Had this correction been made before the proceedings were issued, pursuant to Mr van de Klundert’s request, it is unlikely the proceedings would have issued at all.

(c) The Court should take a holistic view of these proceedings, taking into account the fact that Mr van de Klundert merely sought a declaration of defamation (not damages). This justifies the Court’s

not applying r 15.23 presumption and finding that costs should lie where they fall.

Applicable principles (and a convenient formula)

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 Van de Klundert v Clapperton

Details

AGLC: Van de Klundert v Clapperton [2015] NZHC 1920
Case: [2015] NZHC 1920
Decision Date: 13 August 2015

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Van de Klundert v Clapperton involved the plaintiff, Pieter Matthew van de Klundert, seeking a declaration of defamation against the defendant, Paula Gael Clapperton. The plaintiff discontinued the proceedings following the dismissal of his application for summary judgment. The defendant sought an order for costs and disbursements based on Rule 15.23 of the High Court Rules, which presumes the discontinuing plaintiff must pay the defendant's costs unless the court otherwise orders.

The primary legal issues were whether the presumption under Rule 15.23 should apply and, if not, the appropriate category for assessing costs. The defendant argued for costs on a 2C basis, while the plaintiff opposed costs, arguing that the defendant's combative response and the lack of merit in his case justified not applying the presumption. The court considered various factors, including the reasonableness of bringing and defending the proceeding, the reason for discontinuance, and the merits of the case.

The court found that while it was reasonable for the defendant to defend the proceeding, it was unreasonable for the plaintiff to bring the action, particularly given its lack of merit. The court concluded that the plaintiff had not displaced the presumption under Rule 15.23 and ordered that the plaintiff pay the defendant's costs, amounting to $10,447.50 in costs and $1,423.73 in disbursements, categorising the proceeding as 2B. The court also disallowed certain costs related to an indulgence sought from the court. The court did not consider an offer by the defendant to agree to discontinuance as altering the appropriateness of the costs award.

Orders