Martin v Araneo Limited

[2013] NZHC 28

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2012-485-2172 [2013] NZHC 28

BETWEEN  TIMOTHY JOHN MARTIN Plaintiff

ANDARANEO LIMITED First Defendant

ANDTEAMTALK LIMITED Second Defendant

ANDDAVID BRIAN WARE Third Defendant

ANDGEOFFREY REEVE DAVIS Fourth Defendant

Hearing:         29 January 2013 (Heard at Wellington)

Counsel:         T.J. Martin - Plaintiff in Person

K. Johnston - Solicitor for Defendants

Judgment:      30 January 2013

JUDGMENT AS TO COSTS OF ASSOCIATE JUDGE D.I. GENDALL

Under r 11.5 of the High Court Rules I direct the Registrar to deliver this judgment at 2.30 pm on 30 January 2013.

Solicitors:           Grengle Shreves & Ratner, Solicitors, PO Box 10236, Wellington

TJ MARTIN V ARANEO LIMITED & ORS HC WN CIV-2012-485-2172 [30 January 2013]

[1]      This judgment relates to a claim for costs by the defendants against the plaintiff with respect to a strike-out application.

[2]      The plaintiff issued  the  present  proceedings  against  the defendant  on  18

October 2012.

[3]      On 12 November 2012 the defendants filed an application pursuant to r 15.1 of the High Court Rules seeking an order striking out aspects of the plaintiff’s statement of claim.

[4]      A Notice of Opposition to that application was filed by the plaintiff on 14

December 2012.

[5]      Subsequently, on or about 18 January 2013, the plaintiff issued an amended statement of claim in this proceeding.   As a result of this, the defendants have indicated now that there is no longer a need to proceed with their strike-out application and they sought leave for this to be withdrawn.  That leave was granted at the call of this matter on 29 January 2013.

[6]      Despite this, the defendants have sought costs on their strike-out application which  they  claim  should  not  have  been  necessary  had  the  plaintiff’s  original pleadings been in order.   Scale costs are sought on a category 2B basis and as I understand it they total the sum of $1,194.00.

[7]      The application for costs by the defendants is opposed by the plaintiff.

[8]      The primary principle in any costs determination set out at r 14.2(a) High Court Rules is that an unsuccessful party should pay the costs of a successful party, that is, costs should follow the event.  In the present case, Mr Johnston counsel for the defendants contended that this is a simple matter in which the defendants have effectively succeeded with their strike-out application in that the plaintiff has filed an amended statement of claim.  As a result, he notes the strike-out application did not need to proceed, it was withdrawn and Mr Johnston for the defendants contends they should be entitled to an award of costs on that application.

[9]      In response, the plaintiff argues that as early as December 2011 in discussions he had provided a draft statement of claim to the plaintiffs, some considerable time before the actual proceeding was instituted.  He complains now that no comment or reply to that draft statement of claim was received from the defendants and accordingly on 18 October 2012 he filed that statement of claim in this proceeding with only minor changes to the draft version.

[10]     The  plaintiff  notes  that  he  is  a  self-represented  litigant  and  he  claims specifically here that the strike-out application in his words was “a heavy handed attempt to intimidate a lay-litigant plaintiff.”

[11]     As I see the position, however, there is no evidence before the Court to support that allegation advanced by the plaintiff.

[12]     Indeed the amended statement of claim dated 18 January 2013 has amended the plaintiff’s earlier pleading with several clauses deleted (including old clauses 6 and  7)  and  much material  re-arranged.    In  addition,  the first  defendant Araneo Limited remains as a named party and issues would seem to be unresolved as to whether the company should stay as a party.   There must remain questions as to whether the present proceeding endeavours in effect to be a form of derivative action brought on behalf of the first defendant, but the pleadings do not appear to take this form.

[13]     And, in response to the plaintiff’s contention that the lengthy discussions and negotiations between the parties as early as late 2011, and the provision of a draft statement  of  claim  then,  should  have  some  bearing  on  matters  before  me,  Mr Johnston indicated that there was much correspondence between the parties at the time which may well shed a different light on matters but that in any event there can clearly  be  no  suggestion  that  simply  because  the  plaintiff  is  a  self-represented litigant, the defendants must assist him with whatever proceedings and pleadings he chooses to take.

[14]     On this aspect McGechan on Procedure at HR Pt 14.10(3) addressed the issue of costs being awarded against lay litigants and stated:

HRPt14.10        Lay litigants

(3)        Costs against lay litigants

In Belling v Belling (1996) 9 PRNZ 296 (HC), Hammond J endorsed Fisher J’s

comment in Aplin v Lagan (1993) 10 FRNZ 562 (HC) at 576 that:

“While an unrepresented party should not be penalised on that account alone, if the result has been to throw an extra burden of legal cost upon the represented party, there is no reason why some recognition should not be given to that.”

Hammond J awarded $2,000 costs (unusual in a matrimonial property matter) for

“the considerable, unjustified, skirmishing associated with this appeal”.

[15] In the present case, I am satisfied that an extra burden of legal cost has been placed upon the defendants here resulting from the plaintiff’s initially tangled pleading and the need for the defendant’s application which has resulted in the amended pleading. Whether or not that might improve the situation, particularly given my comments at [12] above, remains to be seen.

[16]     And, as I see the position, there is nothing before me to suggest that the defendants are not the successful parties here.   It was clearly as a result of their strike-out application that the amended statement of claim dated 18 January 2013 was issued.

[17]     For all these reasons, I conclude that the defendants are entitled to costs on their strike-out application which in effect has succeeded.

[18]     Costs  are  therefore  awarded  on  that  application  to  the  defendants  on  a category 2B basis together with disbursements if any as fixed by the Registrar.

‘Associate Judge D.I. Gendall’