Wilson Parking New Zealand Limited v DLA Piper New Zealand

[2023] NZHC 3188

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-0001

[2023] NZHC 3188

BETWEEN

WILSON PARKING NEW ZEALAND LIMITED
Plaintiff

AND

DLA PIPER NEW ZEALAND

First Defendant

GILMER INVESTMENTS LIMITED

Second Defendant

Hearing:

On the papers

Counsel:

L McKeown for the Plaintiff

R Hucker for the Second Defendant

Judgment:

13 November 2023

JUDGMENT OF ASSOCIATE JUDGE BRITTAIN

[costs]

This judgment was delivered by me on 13 November 2023 at 12 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors:

Duncan Cotterill, Wellington Morgan Coackle, Auckland

Counsel:

Capital Chambers, Wellington Molloy Hucker, Auckland

WILSON PARKING NEW ZEALAND LTD v DLA PIPER NEW ZEALAND [2023] NZHC 3188
[13 November 2023]

Introduction

[1]                 On 28 September 2023, I gave judgment dismissing the second defendant’s application for summary judgment; striking out the second and fourth causes of action in the plaintiff’s statement of claim; and directing the plaintiff to file and serve an amended statement of claim providing further and better particulars of the losses the plaintiff claims to have sustained in respect of the remaining causes of action.1

[2]                 The parties have been unable to agree costs and have now filed memoranda setting out their respective positions on costs to be determined in this judgment.

The parties’ arguments

[3]                 The second defendant, Gilmer, submits that it was the successful party, and seeks an award of costs on a 2B basis. Gilmer acknowledges the potential for a reduction in costs to reflect partial success by the plaintiff, Wilson, in defeating the application for summary judgment. That said, Gilmer argues that the application for summary judgment did not significantly increase the costs incurred by Wilson in opposing the application for strike out.

[4]                 Gilmer refers to what it contends are continuing inadequacies in Wilson’s amended pleading, filed after the delivery of my judgment. The adequacy of the amended pleading filed after the judgment is, however, irrelevant to my determination of costs.

[5]                 Gilmer submits  that  the  Court  should  take  into  account  a  letter  dated  19 April 2023 from its solicitors to the solicitors for Wilson, made without prejudice except as to costs. The letter stated:

If there are properly particularised claims our client is prepared to consider withdrawing the summary judgment and the strike out application on the basis that costs lie where they fall.

(the statement)

1      Wilson Parking New Zealand v DLA Piper New Zealand [2023] NZHC 2705.

[6]                 Wilson argues that the statement did not amount to an offer capable of acceptance. It submits that each party achieved an equal degree of success overall such that costs should lie where they fall.

Discussion

[7]                 I accept the submission of counsel for Gilmer that the issues arising from the applications for summary judgment and strike out were linked. However, Gilmer’s application for summary judgment rested on the evidence, and gave rise to distinct issues.

[8]                 Gilmer’s criticism of Wilson’s pleading was justified. Gilmer was successful in obtaining strike out of two of the four causes of action, however, the two causes of action that remain in respect of the “DLA Piper letters” comprise Wilson’s primary claim. Having said that, Wilson was ordered to file further particulars of its primary claim.

[9]                 If Gilmer had not applied for summary judgment, then any criticism of the pleading of the causes of action in respect of the DLA Piper letters was far more likely to have been resolved through the usual case management process.

[10]             If the applications for summary judgment and strike out are considered in the round, I am still of the view that the parties enjoyed approximately equal success and failure.

[11]             I do not consider that the correspondence from Gilmer’s solicitor to Wilson’s solicitor cited above supports an award of costs in Gilmer’s favour.

[12]Rule 14.10 of the High Court Rules 2016 provides:

14.10   Written offers without prejudice except as to costs

(1)A party to a proceeding may make a written offer to another party at any time that—

(a)is expressly stated to be without prejudice except as to costs; and

(b)relates to an issue in the proceeding.

(2)The fact that the offer has been made must not be communicated to the court until the question of costs is to be decided.

[13]             The phrase “an issue in the proceeding” is broad enough to include a procedural issue, such as a disputed pleading point. However, an offer must be clearly and unambiguously stated. The statement did not unequivocally state that Gilmer’s applications would be withdrawn if further particulars were provided, only that Gilmer was “prepared to consider” withdrawal. The proposal required Wilson to provide further particulars without any assurance that the applications for summary judgment and strike out would be withdrawn.

[14]             Rule 14.10 is based on the concept that the offeree should reasonably have accepted the offer.2 Given the way that the statement was phrased, it did not amount to an offer that Wilson, acting reasonably, could have and should have accepted.

[15]             Even so, if Wilson had accepted that it was required to provide further particulars of its losses, consistent with the case law traversed in my judgment, then this might have opened the way for Gilmer to withdraw its applications in their entirety, with costs to lie where they fall.

[16]             Ultimately, it is a question of where the overall justice of the case lies. In my view, costs in respect of the application for summary judgment and the application for strike out should lie where they fall, on the grounds that each party has had a similar measure of success.3

Result

[17]             Costs on the application for summary judgment and/or strike out lie where they fall.

Associate Judge Brittain

2      Body Corporate S73368 v Otway [2018] NZCA 612, (2018) 20 NZCPR 477 at [90].

3      Packing In Ltd (in liq) Chilcott (2003) 16 PRNZ 869 (CA) at [5].