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]…

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

AGLC: Verboeket v Seaview Road Limited HC Wellington CIV-2010-032-190 [2011] NZHC 1125
Case: [2011] NZHC 1125
Decision Date: 15 September 2011

CaseChat Overview and Summary

The case of Verboeket v Seaview Road Limited is an application for costs following an order for further limited discovery. The plaintiff, Peter Charles Robert Verboeket, was ordered to file an affidavit regarding specific documents relating to his efforts to obtain finance. This was after an exchange of correspondence between the parties regarding the form of the order. The plaintiff complied with the order, but now seeks costs for the discovery application, while the defendant seeks costs for the same application. The court had to decide on the appropriate costs for the discovery application and subsequent costs applications.

The legal issues that the court had to decide were whether the plaintiff was entitled to costs for the discovery application, and whether the defendant was entitled to costs for the same application. The court had to consider the factors relevant to any costs award sought by the defendant, including the application being out of time by two weeks, the application not being proceeded by any prior request for discovery, the original application being unduly wide and only narrowed at the hearing, and the order granted being even narrower in scope than the limited discovery sought.

The court found that the plaintiff was entitled to costs for the discovery application, and that the defendant was also entitled to costs for the same application. The court reduced the costs sought by the defendant by approximately 25 per cent to $3,136 plus disbursements of $998.33. The net payment, therefore, by the plaintiff to the defendant is $880 and disbursements $385. The court found that the plaintiff's application for costs was not in dispute by the defendant, while the defendant's application for costs was disputed by the plaintiff.

In conclusion, the court ordered that the plaintiff pay the defendant $880 and disbursements of $385. The court also noted that 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.

Orders