Vogel v Prestige Building Removals Ltd - [2021] NZHC 2070

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2021-419-97

[2021] NZHC 2070

IN THE MATTER of breach of contract

BETWEEN

SHELLEY LYNN VOGEL and BRET ALLEN VOGEL

Plaintiffs

AND

PRESTIGE BUILDING REMOVALS LTD

Defendant

Judgment:

(On the papers)
11 August 2021

COSTS JUDGMENT OF BREWER J

This judgment was delivered by me on 11 August 2021 at 10.30 am pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Denham Bramwell (Manukau) for Plaintiffs
Beattie Rickman Legal (Hamilton) for Defendant

VOGEL v PRESTIGE BUILDING REMOVALS LTD [2021] NZHC 2070 [11 August 2021]

Introduction

[1] Mr and Ms Vogel applied for a mandatory interim injunction against Prestige Building Removals Ltd, seeking specific performance of an alleged contract to move a house.1 I heard the matter via telephone on 24 May 2021 and gave judgment the same day.2 I was satisfied that there was a serious question for trial as to whether there was a contract between the Vogels and Prestige obliging Prestige to transport the house. However, I considered that the balance of convenience weighed against granting the injunction. I observed that it was not clear whether Prestige could move the house if ordered to, and noted the Court’s general reluctance to order complicated mandatory injunctions. Furthermore, I considered damages to be an adequate remedy. I declined to grant the injunction. Prestige now seeks costs.

Prestige’s submissions

[2] Prestige submits that, by analogy, its preparation for the telephone hearing ought to be treated as preparation for an issues conference. This is step 14, which at band B is 0.5 days.

[3] Prestige also seeks indemnity costs, equal to another 0.5 days. Prestige does not attach invoices demonstrating that this time was spent, or even submit that the time was in fact spent – rather, Prestige appears to treat the proposed costs as an award to penalise the Vogels for their alleged bad behaviour. Prestige seeks these costs on the basis that, since I did not accept the Vogels’ arguments, they took an argument that lacks merit pursuant to r 14.6(3)(b)(ii) of the High Court Rules 2016. Furthermore, Prestige submits that since the contract clearly states that there is an expiry date of 3 March 2021 in the documentation supplied by the Vogels in their application, the Vogels failed to admit facts, evidence, or documents pursuant to r 14.6(3)(b)(iii).

1 The Vogels made an application without notice under r 7.23 of the High Court Rules 2016. I observed in my judgment that this is an empowering provision and does not create a distinct species of application. I treated the application as an application for a mandatory interim injunction.
2 Vogel v Prestige Building Removals Ltd [2021] NZHC 1168.

The Vogels’ submissions

[4] The Vogels suggest that costs should lie where they fall. First, they submit that there is no basis for an indemnity or uplifted costs award. They note that my Judgment made it clear that there was a serious question to…

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: [2021] NZHC 2070
Decision Date: 11 August 2021

CaseChat Overview and Summary

Shelley Lynn Vogel and Brett Allen Vogel applied for a mandatory interim injunction against Prestige Building Removals Ltd, seeking specific performance of an alleged contract to move a house. The High Court declined to grant the injunction, considering that damages would be an adequate remedy. Prestige subsequently applied for costs, arguing that the Vogels' application was without merit and that they had not admitted certain facts. The Vogels submitted that costs should lie where they fell, and that there was a public interest in the enforcement of contracts. The court considered the Vogels' arguments and determined that neither indemnity nor uplifted costs were appropriate. The Vogels' arguments, while not ultimately accepted, were not so lacking in merit as to justify such an award. The court also found that the Vogels' suggestion that the case was in the public interest was not defensible, as the dispute was purely private. The court concluded that the Vogels' failure to meet the balance of convenience threshold did not mean that their application was misconceived. The court ordered Prestige costs on a 2B scale basis, totalling $1,195.

The court considered the Vogels' argument that costs should lie where they fell. The court noted that there is case law suggesting that where the successful party contributed to much of the difficulty giving rise to the litigation, costs might be left to lie where they fall. However, the court found that this case did not meet the extreme circumstances required for such an award. The court also found that the Vogels' submission that this was a case in the public interest was not defensible, as the dispute was purely private. The court concluded that the Vogels' failure to meet the balance of convenience threshold did not mean that their application was misconceived.

The court awarded Prestige costs on a 2B scale basis, totalling $1,195. The court considered it appropriate to treat the telephone hearing as if it had been an issues conference for costs purposes. The court found that 0.5 days was a reasonable amount of time to spend on preparing for, and appearing at, the telephone hearing based on the documents filed. The court declined to award indemnity or uplifted costs, finding that the Vogels' arguments, while not ultimately accepted, were not so lacking in merit as to justify such an award. The court also found that the Vogels' submission that this was a case in the public interest was not defensible, as the dispute was purely private. The court concluded that the Vogels' failure to meet the balance of convenience threshold did not mean that their application was misconceived.

Orders