Body Corporate 331094 v The Landings Parnell Limited

[2015] NZHC 979

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-1561 [2015] NZHC 979

BETWEEN

BODY CORPORATE 331094

Plaintiff

ANNA ELIZABETH DARNBROUGH & ORS

Second Plaintiff

AND

THE LANDINGS PARNELL LIMITED AND ESFAHAN LIMITED

First Defendants

PRODESIGNER ARCHITECTS LIMITED

Second Defendant

YQT LIMITED (CANAM) Third Defendant

GREENSTONE GROUP HOLDINGS LIMITED

Fourth Defendant

Hearing:

20 December 2013 and costs submissions 5 February 2014

(on papers)

Appearances:

C E Lane for plaintiffs
S A Thodey for twelfth defendant

Judgment:

8 May 2015

COSTS JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE

This judgment was delivered by me on

08.05.15 at 4.30 p.m., pursuant to

Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

BODY CORPORATE 331094 & Ors v THE LANDINGS PARNELL LIMITED AND ESFAHAN LIMITED & ORS [2015] NZHC 979 [8 May 2014]

ANDJAMES HARDIE NEW ZEALAND LIMITED

Fifth Defendant

ANDFRANKIE BOON KOOI LOW AND WISE PROFILE TILING LIMITED (IN LIQUIDATION)

Sixth Defendants

ANDAUCKLAND WATERPROOFING LIMITED

Seventh Defendant

ANDCERTIFIED CONCRETE REPAIRS LIMITED

Eighth Defendant

ANDINTEGRATED CLADDING SYSTEMS LIMITED

Ninth Defendant

ANDALUMINIUM TECHNOLOGY LIMITED Tenth Defendant

AND  MORGAN POOLS LIMITED (CLAIM DISCONTINUED)

Eleventh Defendant

ANDAUCKLAND COUNCIL Twelfth Defendant

[1]     I thank counsel for their memoranda concerning costs in this matter.

[2]    The essential issue is that the twelfth defendant applied for strike out and summary judgment orders.  The applications were varied on a number of occasions with the summary judgment application being dropped and then reinstated.  In the end the application went to defended hearing on the basis that only a strike out order was sought.

[3]    The successful respondents seek that costs and disbursements be fixed.  The applicant has however taken the view that this is not a straightforward case of applying  rules  14.1  and  14.2.    That  is  because  the  applicant  filed  a  summary judgment application and because rule 14.2 provides that the usual rule for fixing costs following the conclusion of a defended interlocutory application does not apply to applications for summary judgment.  The authorities which the applicant refers to

include Air Nelson Ltd v Airways Corp of NZ Ltd1  and are to the effect that, in

general, the proper course when refusing a plaintiffs summary judgment is to reserve costs until the result of the litigation is known.   Further the general approach to be adopted is that where a applicant for summary judgment is ultimately successful in the litigation but has earlier failed at the summary judgment claim the plaintiff should nonetheless be entitled to costs both on  the summary judgment  and the substantive proceeding.   An exception is recognised in cases where the summary judgment  application  had  been  dismissed  due  to  some  fault  on  the  part  of  the plaintiff.  Exceptional cases which justify departure from the usual approach include where the applicant has sought summary judgment when the rules do not allow that procedure or in the certain knowledge that there is a bona fide question of fact or law which can be determined only after the trial.  In such circumstances the Court may in its discretion award costs on the summary judgment application to the respondent to

the application.2

1 Air Nelson Ltd  v Airways Corp of NZ Ltd (1992) 6 PRNZ 1

2 Air Nelson Ltd v Airways Corp of NZ Ltd (1992) 6 PRNZ, page 1 at page 4.

[4]    This  case  is  not  yet  concluded  so  the  defenceability  or  otherwise  of  the applicant  bringing  the  application  for  summary  judgment  might  be  said  to  be unclear.

[5]    One point that may be influential is the fact that in this case the applicant discontinued the summary judgment application and so the Court never came to a conclusion on it.   However by discontinuing the summary judgment application, which is in substance what occurred, the applicant implicitly acknowledged that the case was not suitable for summary judgment.   This is not therefore a case that involves the application being heard by the Court and being dismissed but rather being withdrawn by the party who put it forward ahead of the hearing.  It therefore bears similarity to the situation that applies where there has been a discontinuance under Part 15, subpart 4 of the Rules.  In such a circumstance the usual approach is

for a party discontinuing to meet the costs of the opposing party.3

[6]    The disputed part of the claim here relates to costs that were incurred with relation to the summary judgment application.  That is they are costs which would not have been incurred in filing an affidavit and other steps which only became necessary because of the presence of an alternative summary judgment application in addition to the strike out application.  But the fact that the applicant withdrew the summary judgment application is not definitive of the issue.  A party may have had good grounds for issuing a summary judgment application in the first place only to later review the position in view of, for example, the response that has been made to the summary judgment application.

[7]    The question of whether the applicant was justified in this case in bringing summary judgment would be clarified by the determination of the Court on key factual issues which would resolve any uncertainties about whether or not there was an  arguable defence  available  to  the applicant.    The  Court  having resolved the substantive proceeding would be in a good position to resolve that point.

[8]    My conclusion is that it should be possible to break the components of the

respondents’ costs claim into two separate elements:   the costs and disbursements

3 Rule 15.23.

attributable only to the summary judgment application and the other parts of the claim.   The former should be reserved for decision until the outcome of the substantive proceedings is known.  The other costs and disbursements can be paid now.  I invite the parties to again confer on resolving this issue without the need for further directions from the Court and submitting a draft order for adoption by the Court.   However, if necessary, either party will have leave to apply for further

directions within 10 working days of the date of this decision.

J.P. Doogue

Associate Judge