Yingling v Gifford

[2019] NZHC 3111

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE

CIV-2015-416-26

[2019] NZHC 3111

BETWEEN

RANDY YINGLING

Plaintiff

AND

KEN GIFFORD

First Defendant

DEAN WITTERS

Second Defendant

On the papers:

Counsel:

G J Thwaite for Plaintiff

G R Webb for First Defendant

Judgment:

27 November 2019

JUDGMENT OF CHURCHMAN J (COSTS)

Background

[1]                 By judgment dated 17 September 2019, I granted the first defendant’s application for an adjournment of civil proceedings that had been set down to commence on 18 September 2019.

[2]                 The basis for the application was that the first defendant had just changed solicitors (for the third time) and that his new solicitor needed to amend the pleadings.

[3]                 The granting of an adjournment in these circumstances was an indulgence, and I indicated that I would entertain an application for costs if the plaintiff wished to make one.

YINGLING v GIFFORD (COSTS) [2019] NZHC 3111 [27 November 2019]

[4]                 By memorandum dated 24 September 2019, counsel for the plaintiff sought costs of $17,925. This sum was calculated on the basis of full recovery of all of the preparation costs the plaintiff would have been able to claim had the hearing proceeded and the plaintiff being successful. On top of that, the plaintiff also sought an uplift of 50 per cent.

[5]                 The rationale for the claim for the entire preparation costs, plus a 50 per cent uplift is not entirely clear. However, the relevant parts of the plaintiff’s submissions appear to be the claims that:

Plaintiff’s preparation for the trial has been wasted. If a new Statement of Defence is filed, it will likely require a new approach by Plaintiff. Accordingly, Plaintiff seeks reasonable costs for preparation for the trial on the existing pleadings.

[6]                 The first part of the plaintiff’s submissions on costs traces the history of the plaintiff’s unsuccessful applications for summary judgment.1

[7]                 Subsequently in his memorandum, counsel for the plaintiff submits that “First Defendant has held off a final hearing on a Judgment for five calendar years.” This statement seems to be made in support of the application for costs.

[8]                 As I indicated in the 17 September 2019 judgment, given that over two and a half years of the delay were taken up with the plaintiff’s unsuccessful summary judgment and strike-out application, at least until 5 February 2018, the defendants cannot be blamed for any delay to this point.2

[9]                 The costs application that the  Court  anticipated  in  [30]  and  [31]  of  the 17 September 2019 decision related to the application for an adjournment and leave to file an amended statement of defence. It did not relate to the earlier interlocutory applications or the delays caused by them.

[10]              By memorandum dated 1 October 2019, counsel for the defendant opposed the costs application. Among the grounds were that the work claimed for in the

1      The convoluted history of these proceedings is detailed in Yingling v Gifford [2019] NZHC 2342 at [1]-[14].

2 At [13].

application might be appropriately regarded as costs in the proceeding and dealt with on finality, and that no basis had been given for the claimed 50 per cent uplift.

[11]              The memorandum also notes that the plaintiff did not, as directed by Associate Judge Johnston in a minute of 12  December 2018,3  file his witness statements by    8 March 2019. The defendant notes that the plaintiff’s preparation for trial has not been wasted and that the underlying issue will go to trial.

Analysis

[12]              The Court has an overriding discretion in relation to costs. Where a fixture has to be vacated as a result of a default on the part of one party, the Court can award costs against that party.4 This is an exception to the usual rule that costs follow the event in that, because the hearing has been vacated, there has been no “event”.

[13]              The rationale for such costs is to impose a sanction on the defaulting party, in an effort to avoid future wastage of costs and of judicial and Court resources, and inconvenience to other parties awaiting fixtures.5

[14]              The award of costs is usually related to the component of costs that are “wasted” costs. In other words, they are costs which will have to be incurred all over again in relation to preparation for the fresh fixture.6

[15]              Applicants for costs are not automatically entitled to full scale costs for all the preparatory steps, much less an uplift of 50 per cent on such costs.7

[16]              The plaintiff’s claim that preparation for the trial has been wasted in this case is an exaggeration. The statement that an amended statement of defence “will likely require a new approach by the plaintiff” is also unrealistic.

3      Yingling v Gifford CIV-2015-416-26, 12 December 2018.

4      See Jeffreys v Morgenstern [2013] NZHC 1361 at [31].

5      See Marley New Zealand Ltd v Skellerup Rubber Services Ltd [2013] NZHC 3040 at [11].

6      See Jeffreys v Morgenstern, above n 4, at [37].

7      See Fu Hao Construction Ltd v Landco Albany Ltd CIV-2004-404-6608, 23 May 2008.

[17]              The fact that the matter was not ready to proceed on the scheduled date is not entirely the first defendant’s fault, as the plaintiff, in failing to comply with some of the timetable directions made by the Associate Judge, also contributed to the need for an adjournment. The actual wasted costs incurred by the plaintiff are likely to be relatively modest and nothing like the $17,925 claimed.

[18]              Weighing all of these matters and acknowledging that the defendant has received an indulgence, an appropriate award of costs is $2,000, payable by the first defendant to the plaintiff.

Churchman J

Solicitors:

G J Thwaite, Auckland for Plaintiff

Nolans, Solicitors, Gisborne for First Defendant