Lepionka & Company Investments Limited v GLW Group Limited

[2016] NZHC 1337

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CIV-2015-441-59 [2016] NZHC 1337

BETWEEN

LEPIONKA & COMPANY

INVESTMENTS LIMITED Plaintiff

AND

GLW GROUP LIMITED First Defendant

GARTH BOWKETT PATERSON Second Defendant

ANDREW WILLIAM CLYDE COLTART AND SUSAN MARGARET COLTART Third Defendants

On the Papers
Counsel:	C F Reid for the Plaintiff M B Lawson for the First Defendant
Judgment:	20 June 2016

JUDGMENT OF ASSOCIATE JUDGE SMITH

[1]      In July 2015 the plaintiff filed a proceeding against the defendants alleging trespass, and seeking vacant possession of certain land near Havelock North.  The plaintiff applied for summary judgment, and the summary judgment application was listed for first call on 13 August 2015.

[2]      The   first   and   second   defendants   filed   a   notice   of   opposition   on

7 August 2015, together with a supporting affidavit sworn by Mr Paterson.  At the same time, the first and second defendants filed a memorandum of counsel, which attached a detailed draft defence and counterclaim to be filed by the first defendant. Counsel’s covering memorandum stated that the statement of defence was provided by counsel to the Court for the purposes of outlining the nature of the defence and

counterclaim in the substantive proceeding.

LEPIONKA & COMPANY INVESTMENTS LIMITED v GLW GROUP LIMITED [2016] NZHC 1337 [20

June 2016]

[3]      On 13 August 2015, shortly before the hearing, the plaintiff discontinued the proceeding. The first defendant now applies for costs.

[4]      Counsel have filed memoranda.   It is not disputed that an order should be made for costs in the first defendant’s favour, or that those costs should be on a 2B basis.

[5]      For the first defendant, Mr Lawson says that there should be an award of

$10,258, representing 4.6 days at the current daily recovery rate of $2,230 for a 2B

proceeding.  The breakdown of that claim for costs was set out in the following table provided by Mr Lawson in his submissions:

Schedule 3	Description	Number of Days
Item 2	Commencement of Defence by First Defendant	2
Item 4	Counterclaim	1.6
Item 10	Preparation for first case management conference	0.4
Item 23	Filing Opposition to Interlocutory Application	0.6
Total	4.6 days

[6]      In   his   memorandum   filed   in   opposition,   Mr   Reid   notes   that   the discontinuance was filed following service of the first defendant’s notice of opposition.  He submits that the only costs to which the first defendant is entitled are those relating to Item 23 of sch 3 to the High Court Rules (scale costs on filing the notice of opposition to the interlocutory application for summary judgment).

[7]      I accept Mr Reid’s submissions in part.  The first defendant did not actually file a statement of defence before the discontinuance was filed, and nor did it file a counterclaim.  What it filed was a memorandum of counsel annexing a draft defence and counterclaim.

[8]      I think the memorandum should properly be treated as (incomplete) written submissions in opposition to the summary judgment application, under cl 24 of sch 3 to the High Court Rules (“Preparation of written submissions”).

[9]      Given the lateness of the filing of the notice of discontinuance, I think it is appropriate in this case to make a modest costs award to the first defendant under cls 10 and 24 of sch 3, covering the written submission and some time preparing for the hearing on 13 August 2015.  However I do not consider that the full 1.5 days should be allowed under cl 24, as the submissions were incomplete.   I think the justice of the case will be met if a total of one day is allowed on a 2B basis, covering both the filing of the memorandum on 7 August 2015 and the preparation for the hearing on 13 August 2015.  In addition, the first defendant is entitled to costs on the filing of the notice of opposition, under cl 23 of sch 3.

[10]     The  result  is  that  the  first  defendant  is  awarded  costs  totalling  $3,568 (1.6 days x $2,230/day).

[11]     The first defendant has not made any claim for disbursements.

Associate Judge Smith