Bushetts Transport Limited v Lowes HC Wellington CIV 2011-485-131 [2011] NZHC 1933 (13 June 2011)

Last Updated: 3 February 2012

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

_{CIV 2011-485-131}

BETWEEN BUSHETTS TRANSPORT LIMITED First Plaintiff

AND EASTERN EQUITIES INVESTMENTS LIMITED

Second Plaintiff

AND GRAHAM ROGER LOWES AND TONY IAN LOWES

First Defendants

AND JANIFRIE FOOT Second Defendant

AND RODERICK JOHN PARSONS Third Defendant

AND CHB TRANSPORT LIMITED Fourth Defendant

Hearing: 13 June 2011

Counsel: B Gustafson for Plaintiffs

K Sullivan for First Defendants

P R W Chisnall for Second Defendant

M E J Macfarlane for Third and Fourth Defendants

Judgment: 13 June 2011

_{JUDGMENT OF RONALD YOUNG J}

[1] There is a dispute between the plaintiff and non parties regarding costs of an

_{application for non party discovery. Some brief background is necessary.}

BUSHETTS TRANSPORT LIMITED V GRAHAM ROGER LOWES AND TONY IAN LOWES HC WN CIV

2011-485-131 13 June 2011

[2] On 30 May 2011 the plaintiff and counterclaim defendant sought non party discovery against Roderick John Parsons and CHB Transport Limited. The application was filed on 30 May 2011 with a return date of 13 June 2011. I note that the application itself was dated 27 May 2011 but the interlocutory application could not have been served until 30 May at the earliest given that the Court allocated the return date of 13 June 2011 on 30 May 2011. The application was accompanied by an affidavit by Mr Lowe.

[3] Mr Parsons, on behalf of himself and CHB Transport filed on 10 June a notice of opposition and affidavit in response. This response was, therefore, seven clear working days after the filing of the interlocutory application (HCR 7.24).

[4] Mr Parsons and CHB Transport had formally been third and fourth defendants in this litigation but had settled with the plaintiff. Mr Parsons claimed that part of the arrangements between the parties was that he would forthwith produce to the plaintiff all documents relating to the particular relationship. Mr Parsons says that he did so. Mr Parsons says that the request for discovery was well beyond what was required as part of the settlement agreement. In his affidavit he says that he would be prepared to provide the material as long as the plaintiff paid the costs of doing so but initially the plaintiff was not prepared to do so.

[5] The non parties say that as early as 27 May in correspondence they made it clear that they would provide a sworn list and the documents would be made available for inspection but “only at the cost of the plaintiffs”. They offered to provide discovery on that basis without the necessity for a Court order.

[6] The notice of opposition filed by the non parties indicates that they were prepared to provide an appropriate list but that they sought costs on the application as well as the costs of processing the discovery.

[7] When the matter came before me the parties had agreed that discovery orders could be made against the non parties. They agreed that the non parties were entitled to have $1,500 towards the cost of producing the material but the parties could not agree on whether or not the non parties were entitled to costs on the plaintiff’s application.

[8] In my view the non parties are entitled to a modest contribution towards their costs. It should not be on a 2B basis. I accept in the circumstances they were required to respond to the plaintiffs’ application. The non parties are, by the nature of their settlement, no longer parties to this proceeding and had been put to some expense in responding. However, it is difficult to see it was necessary to file such an extensive response affidavit in the circumstances. Indeed given they were consenting to the orders made and simply seeking costs I cannot see than anything more than a notice of opposition was required.

[9] In those circumstances rather than allocate costs on a categorisation basis, I

_{allow the non parties total costs of $300 payable by the plaintiff.}

Ronald Young J

Solicitors:

B Gustafson, Barrister, PO Box 1297, Shortland Street, Auckland, email: [e-mail]

K Sullivan, Barrister, PO Box 5817, Wellington, email: [e-mail]

P R W Chisnall, Barrister, PO Box 5817, Wellington, email: [e-mail]

M E J Macfarlane, Sainsbury Logan & Williams, PO Box 41, Napier, email: [e-mail]