Masonry Dessign Solutions Ltd v Appleby Holdings Ltd

[2017] NZHC 3247

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-1651

[2017] NZHC 3247

BETWEEN

MASONRY DESIGN SOLUTIONS LTD

Plaintiff

AND

APPLEBY HOLDINGS LTD

First Defendant

JOHN FITZHERBERT KENDRICK
Second Defendant

GRAEME JOHN MURPHY
Third Defendant

(Continued over)

Hearing:	(On the papers)
Counsel:	M Heard and L Clews for Messrs Kendrick and Murphy J D Turner and L Huang for Mr Wilson
Judgment:	19 December 2017

COSTS JUDGMENT OF BREWER J

Solicitors:

Lee Salmon Long (Auckland) for Messrs Kendrick and Murphy McVeagh Fleming (Albany) for Mr Wilson

MASONRY DESIGN SOLUTIONS LTD v APPLEBY HOLDINGS LTD [2017] NZHC 3247 [19 December 2017]

AND

CIV-2016-404-3286

BETWEEN                JOHN FITZHERBERT KENDRICK

First Plaintiff

GRAEME JOHN MURPHY

Second Plaintiff

A N D  MARK INNES WILSON

Defendant

[1]        In my Judgment delivered on 30 November 2017, I granted an application for the two cases to be tried at the same time.1 Because of the nature of the application, I said this about costs:

[15]  Given the nature of the application and the basis of the opposition, I  am inclined to let costs lie where they fall. This will crystallise as the position at 2:15 pm on 19 December 2017 unless I receive a memorandum or memoranda to the contrary.

[2]        Perhaps unsurprisingly, the applicants today filed a memorandum seeking costs on a 2B scale basis. This is opposed by the respondent.

[3]        As the parties acknowledge, I have a discretion as to the award of costs, even though costs generally follow the event.

[4]        This was an unusual situation. The applicants’ proceeding is in defamation and the respondent’s case is in contract. Because of the commonality of the issues and the witnesses, it was accepted that the cases should be combined. The only issue for me to decide was how they should be combined. The applicants’ view was that the cases should be tried at the same time and the respondent’s position was that they should be tried back-to-back. A major reason for the respondent’s position was that back-to- back trials would preserve the respondent’s tactical advantage as defendant in the defamation claim to give evidence after the plaintiffs in the defamation claim.

[5]I found for the applicants purely on grounds of efficiency.

[6]        I take the view that this was a procedural matter where both parties had good arguments and neither was being unreasonable or time-wasting. Further, as a result of my ruling, the respondent has lost a (limited) tactical advantage which he would normally enjoy. In one sense, the applicants gained an indulgence in that normal procedure has been changed at their behest.

[7]Costs will lie where they fall.

Brewer J

1      Masonry Design Solutions Ltd v Appleby Holdings Ltd [2017] NZHC 2950.