Winton v Winton

[2018] NZHC 710

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE

CIV-2016-485-419

[2018] NZHC 710

BETWEEN

JAMES ANDREW WINTON

Plaintiff

AND

VIRGINIA RUTH WINTON

Defendant

Hearing:

On the papers

Counsel:

J D Haig for the Plaintiff

C S Chapman for the Defendant

Judgment:

18 April 2018

JUDGMENT OF GRICE J

(Recall of costs judgment)

[1]                 The defendant,1 seeks a recall of my costs judgment dated 21 March 2018 on the basis that the judgment does not refer to material from the defendant’s submissions in its memorandum of 21 November 2017. Counsel for the defendant says:2

If in fact the defendant’s 21 November 2017 submissions were not considered by the court then the defendant applies for the judgment to be recalled and to be reconsidered by Her Honour after taking into account the material in the 21 November 2017 submissions.

[2]The basis upon which the submission made is:

(a)In paragraph [7] of the judgment there is a reference to the plaintiff’s submissions, but from the material referred to “it is apparent that this is

1      The applicant in the application for costs.

2      Memorandum dated 29 March 2018.

WINTON v WINTON [2018] NZHC 710 [18 April 2018]

a reference  to  the  plaintiff’s  submissions  by  memorandum  dated  5 December 2017”.

(b)The judgment next refers to “defendant’s submissions”. This appears from the material referred to in the judgment as a reference to the defendant’s submission by memorandum dated 12 December 2017.

[3]The plaintiff (respondent in the costs application) responds:

(a)While the plaintiff does not know exactly what the court referred to, it must have had  reference  to  the  defendant’s  memorandum  dated  21 November 2017:

(i)Given that document included the grounds for and was the application for costs itself. Documents filed, rather the application submissions, were in composite in the memorandum of counsel.

(ii)The plaintiff’s memorandum of counsel dated 5 December 2017 responded to the points raised in the costs application set out in the defendant’s memorandum of 21 November. Thus, the points raised were responded to.

(iii)The defendant also responded to the plaintiff’s response to costs by second memorandum dated 12 December 2017. Accordingly, all matters raised in the initial memorandum dated 21 November 2017 by that point had been thoroughly canvassed.

(b)In addition, the plaintiff submits that “given the non-binary outcome of the interlocutory applications which were disposed of about the court hearing parties arguments in full or issuing any decision on the merits”, the decision was clearly correct.

[4]                 I have reviewed the file. It is apparent I did consider the memorandum of defendant’s  counsel  on  costs  for  particulars  and  discovery  applications  dated  21 November 2017 in reaching my decision.   Nevertheless, I have reviewed the     21 November 2017 memorandum again. It covers matters relating to the merits of the position taken by the defendant in relation to the interlocutory applications. In addition, it attaches correspondence in support of the defendant’s arguments, some which may have been relevant to an argument on the merits of the applications. However, there was no completed hearing on the merits of the applications for which costs were sought.

[5]                 The defendant’s application for costs itself was part of the memorandum. While the memorandum of 21 November 2017 is not referred to specifically, the application which it contained was referred to. In addition, paragraph [34] of the memorandum of 21 November 2017 seeks costs on the filing of two statements of defence. That application is also specifically referred to in the judgment:

[28] This costs application only relates to the interlocutory applications partly heard before Smith AJ on 14 August 2017. In the defendant’s application for costs, she also applies for costs for the filing of amended pleadings. That is outside the ambit of this application, and has not been dealt with for that reason.

[6] In the judgment, I have referred to the arguments on the merits including at [22]. I noted that there had been no full hearing of the application nor any determination on the merits and it was not appropriate for me to embark on that assessment when dealing with the application for costs on the papers.

[7]The memorandum of 21 November 2017 was considered by me.

[8]The application for recall is dismissed. Costs are reserved.

Grice J