Verboeket v Seaview Road Limited HC Wellington CIV-2010-032-190

[2011] NZHC 1125

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2010-032-190

BETWEEN  PETER CHARLES ROBERT VERBOEKET

Plaintiff

ANDSEAVIEW ROAD LIMITED Defendant

Hearing:         On Papers

Counsel:         P S J Withnall for Plaintiff

S M Dwight for Defendant

Judgment:      15 September 2011

JUDGMENT OF RONALD YOUNG J (Costs and other orders)

[1]      In my Judgment of 22 August 2011 I ordered further limited discovery by the plaintiff arising from an application by the defendant.  At the end of my decision I said:

[24]      Should the parties be unable to agree on the exact form of the order then the matter can be referred to me but I expect, given my view expressed here, they will be able to agree upon the extent of the discovery available by the defendant of the plaintiff.

[2]      I have now received submissions from the parties regarding the form of any discovery order as well as costs applications relating to this order for discovery as

well as other discovery.

PETER CHARLES ROBERT VERBOEKET V SEAVIEW ROAD LIMITED HC WN CIV-2010-032-190 15

September 2011

[3]     Firstly, as to the form of the order.   There has been an exchange of correspondence between the parties relating to the form of the order.  Eventually the parties appear to have agreed on the form of an order in the following terms:

That the plaintiff file an affidavit stating whether the following documents or class of documents are or have been in the plaintiff’s power or control and if they are no longer in his power or control when he ceased to have them and who now has control of them, namely:

(a)       all documents relating to the plaintiff’s efforts to obtain finance and the documents relating thereto with respect to this transaction after

23 December 2009.

[4]      The plaintiff has now filed a further affidavit of documents in terms of that agreement. Although the defendant still seeks an order of this Court in those terms it now seems to me unnecessary.  If the defendant disputes the extent of compliance by the plaintiff of the terms of the agreement, then it may be appropriate for a formal order to be made.  Otherwise, the plaintiff has already complied.

Costs order discovery

[5]      The plaintiff has filed an application for discovery relating to which the defendant has complied and the plaintiff now seeks costs on that application.  The defendant seeks costs on this application.

[6]      The plaintiff seeks a costs order of $2,256 together with disbursements of

$613.33, total of $2,869.33 on his discovery application.

[7]      In turn, the defendant seeks costs of $4,136 together with disbursements of

$998.33 in relation to this application.  They say the appropriate award, therefore, is that  (as  a result  of the two  discovery applications)  the plaintiff should  pay the defendant a net $1,880 and net disbursements of $385 to reflect the overall position of the parties.

[8]      The plaintiff’s application for costs is not in dispute by the defendant.  The defendant’s application for costs is disputed by the plaintiff.

[9]      The plaintiff says the following factors are relevant to any costs award sought by the defendant:

(a)      the application was out of time by two weeks.  I agree this is relevant as I observed at [11] of my Judgment of 22 August;

(b)the application was not proceeded by any prior request for discovery as is usual.  That might be true but given the plaintiff’s resistance to the application for further discovery any failure by the defendant to give prior notice hardly matters;

(c)      the original application was unduly wide and only narrowed at the hearing.   I agree that is the case and some modest discount is also appropriate for that aspect;

(d)the order granted is even narrower in scope than the limited discovery sought.  I agree this is also relevant to the total costs awarded.

[10]     I am satisfied the defendant is entitled to costs on its application given an order for further discovery was made.  The costs sought by the defendant are $4,136 plus  disbursements.    I  reduce  those  given  the  above  matters  by  approximately

25 per cent to $3,136 plus disbursements of $998.33. The net payment, therefore, by the  plaintiff  to  the  defendant  is  reduced  by  a  further  $1,000.    Costs  payable, therefore, overall by the plaintiff to the defendant are $880 and disbursements $385

(also the net position).

Ronald Young J

Solicitors:

P S J Withnall, Wellington, email:  [email protected]

S M Dwight, Cavell Leitch Pringle & Boyle, Christchurch, email:  [email protected]