Littlejohn v Southern Response Earthquake Services Limited

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2012-409-2524 [2013] NZHC 1072

BETWEEN KITT ROBERT MAYO LITTLEJOHN AND PHILIP BASIL NICHOLSON Plaintiffs

ANDSOUTHERN RESPONSE EARTHQUAKE SERVICES LIMITED
Defendant

Hearing: (On papers)

Counsel: G Shand for Plaintiffs
S Waggott for Defendant

Judgment: 13 May 2013

JUDGMENT OF MILLER J (AS TO COSTS)

[1] The plaintiffs have moved for costs on the proceeding. I decline to award them. My reasons follow.

[2] The proceeding has settled and a notice of discontinuance is apparently to be filed, although that has not yet happened. Costs are sought on the footing that the plaintiffs won, since the defendant has agreed to pay them a sum of money which they say is not far short of the amount originally claimed and substantially more than the defendant initially offered.

[3] Costs are normally awarded for steps in a proceeding, by which I mean formal steps under the rules of the Court. They normally follow the result of the proceeding, which relevantly may be discontinuance or judgment. So a party who has won a judgment normally gets costs, and a plaintiff who discontinues normally
must pay costs on the discontinuance. As the matter has settled without judgment

KITT ROBERT MAYO LITTLEJOHN AND PHILIP BASIL NICHOLSON v SOUTHERN RESPONSE EARTHQUAKE SERVICES LIMITED HC CHCH CIV-2012-409-2524 [13 May 2013]

and a discontinuance is to be filed, the plaintiffs would not ordinarily be entitled to costs at all.

[4] Costs are always in the Court’s discretion, but it will not ordinarily speculate about what would have happened had there been a trial.[1] Only in exceptional cases will the Court take a different view: Auckland City Council v Southbourne Holdings Limited HC AK CIV-2010-404-4076, 8 November 2011. I do not think this case is sufficiently exceptional. It is not enough to compare amounts initially claimed against those offered. All of that might have changed by the time of trial. The
[1] Ford v First National Real Estate Network Ltd (2006) 18 PRNZ 432.
reasons for any disparity between the claim and the amount paid might also be relevant, as might the defendant’s reasons for not paying before action.

Miller J

Solicitors:
Wynn Williams & Co, Christchurch for Defendant

CaseChat Overview and Summary

The plaintiffs, Kitt Robert Mayo Littlejohn and Philip Basil Nicholson, brought a claim against Southern Response Earthquake Services Limited, seeking damages for alleged breaches of contract and negligence in relation to earthquake engineering services provided in the aftermath of the Canterbury earthquakes. The matter was heard in the High Court of New Zealand, Christchurch Registry, where the plaintiffs sought costs on the proceeding. The defendant, Southern Response Earthquake Services Limited, contested the claim for costs, arguing that the case had settled and that the plaintiffs should not be awarded costs as the matter was not concluded by judgment or discontinuance.

The central legal issue before the court was whether the plaintiffs were entitled to costs despite the settlement and impending discontinuance of the proceeding. The plaintiffs argued that they had effectively "won" the case, as the defendant had agreed to pay them a sum of money that was close to the original claim amount. The court needed to determine whether the plaintiffs could be considered the "winners" of the proceeding for the purposes of awarding costs, despite the lack of a formal judgment or discontinuance.

The court declined to award costs to the plaintiffs, finding that the case did not meet the criteria for exceptional circumstances where costs might be awarded despite a settlement. The court emphasised that costs are generally awarded based on the formal steps taken in the proceeding and the result, which could be either a judgment or a discontinuance. Since the matter had settled without a judgment or formal discontinuance, the court held that the plaintiffs were not entitled to costs. The court also noted that it would not speculate on the potential outcome of the case had it proceeded to trial. The court concluded that the case did not warrant a deviation from the usual principles governing the award of costs.

No final orders were made in relation to costs, as the matter had settled and a notice of discontinuance was to be filed. The court's decision focused solely on the issue of whether costs should be awarded to the plaintiffs in the circumstances of the case.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established