HIBBITT V BRADLEY & ANOR HC AK CIV 2005-404-5560 [2006] NZHC 197 (9 March 2006)

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
                                                                       CIV 2005-404-5560



              BETWEEN                       TERENCE JAMES HIBBITT
                                            Intending Plaintiff

              AND                           CHRISTOPHER CHARLES GRANVILLE
                                            BRADLEY AND
MARK GREGORY
                                            LAWLOR
                                            Intended Defendants


Hearing:      9 March 2006
              (on the papers)

Counsel:      B Rooney for intending plaintiff
              D Jenkin
for intended defendants

Judgment:     9 March 2006 at 11:30


                 JUDGMENT OF ASSOCIATE JUDGE FAIRE
              
               [on costs]




Solicitors:    James Keat, PO Box 99 680, Newmarket for intending plaintiff
               Miller Bradley,
PO Box 17 338, Auckland for intended defendants




HIBBITT V BRADLEY & ANOR HC AK CIV 2005-404-5560 9 March 2006

[1]    The intended
defendants apply for costs following the withdrawal of an
application by the intending plaintiff.


[2]    The intending plaintiff's
application was made in reliance on r 301 of the
High Court Rules. It sought an order that the intended defendants file and serve
an
affidavit stating whether they have in their possession a deed of sublease (or a copy
of the deed of sublease) between Domain
Investments Limited and the firm Miller
Bradley entered into in or about 2001 in respect of premises at Level 2, 323 Great
South
Road, Greenlane.


[3]    By definition applications under r 301 are interlocutory applications. That is
prescribed by r 301(3).


[4]    I directed that memoranda be filed in support, opposition and reply on the
question of costs. Such memoranda have been filed.


[5]    It is appropriate that I refer briefly to the approach which the Court must take
on an applications for costs. Rule 46 provides
that costs are to be in the discretion of
the Court.     In Mansfield Drycleaners Ltd v Quinny's Drycleaning (Dentice
Drycleaning
Upper Hutt) Ltd CA 296/01 29 September 2002 the Court of Appeal, in
noting the Court's over-riding discretion pursuant to r46 said:

       there is a strong implication that a Court is to apply the regime in the
       absence of some reason to the contrary: Body
Corporate 97010 v Auckland
       City Council. We do not think that a Court should hesitate to depart from the
       regime where
appropriate but we agree that some articulation of the reason
       for doing so is to be expected, however succinct. If no reason
is given it will
       expose the award to close appellate scrutiny.

[6]    The general principles to be applied in the exercise
of that discretion are
those contained r47. The first general principle there stated is that the party who
fails with respect to
an interlocutory application should pay the costs to the party
who succeeds.


[7]    In Glaister & Ors v Amalgamated Dairies Ltd
& Anor  [2004] 2 NZLR 606
the Court of Appeal endorsed the proposition it made in the earlier decision in
Mansfield Drycleaners Ltd v Quinny's Drycleaning
(Dentice Drycleaning Upper

Hutt) Ltd. It noted that if there was any departure from the costs regime as set out by
the High Court
Rules, that could only be done on a particularised and principled
way.


[8]    The intending plaintiff has withdrawn the application.
Its actions, in many
respects, are akin to the discontinuance of a proceeding. Where a proceeding is
discontinued, r 476C provides:

       476C Costs

       Unless the defendant otherwise agrees or the Court otherwise orders, a
       plaintiff who discontinues
a proceeding against a defendant must pay costs
       to the defendant of and incidental to the proceeding up to and including the
       discontinuance.

[9]    A complicating factor in this case is the first ground in opposition to the order
sought. I set out
in full what is pleaded in paragraph 1 of the notice of opposition:

       The orders sought are not necessary in any event, as
required by R.301, as
       the intended defendants have, through the affidavits filed on their behalf in
       support of this
opposition, provided yet further answers to the request of the
       intending plaintiff, in addition to prior correspondence with
the intending
       plaintiff and his counsel (as disclosed in the affidavit of Mr CCG Bradley
       filed in opposition), regarding
the alleged existence of a lease or form of
       lease as between the old firm of Miller Bradley (that existed prior to the
  
    dissolution of that partnership on 28 March 2003), and the (service)
       company Domain Investments Limited, (which acted
as trustee on behalf of
       a partnership of trading trusts on behalf of the three partners of the old firm).
       As far as
the intended defendants are aware:

       ·   Such a document does not in fact exist;

       ·   In any event they do not have
any copy of any such document if it did
           exist; and further,

       ·   The person who would most likely have a copy if
the document ever did
           come into existence would have been the intending plaintiff.

[10]   That, however, is not the only
basis for opposing the application. That is
because in its second ground the intended defendants plead that there is no merit or
substance to support any claim by the intending plaintiff for relief against the
intended defendants.

[11]    It is the intending
plaintiff's contention that what it achieved by the notice of
opposition and supporting affidavit was the principal relief that it
sought in its
application and that, then, was the reason why it withdrew the application.


[12]    The relief sought and received,
however, was that no such document as was
sought by the application was in existence. That fact had been asserted by the
intended
defendants prior to the filing of the application.


[13]    Counsel have filed lengthy memoranda which really invite an examination
of
a dispute well beyond that which is raised by the application under r 301. It would
be improper of me to embark on it as it is
plainly irrelevant to the discretion to award
costs in this case.


[14]    I have carefully considered the file and have formed
the following view:


        a)      The application is a Category 2 application in terms of r 48 of the
                High Court
Rules;


        b)      The application must be treated as an interlocutory application
                because it is defined as
an interlocutory application by r 301;


        c)      The notice of opposition and the affidavit in opposition are significant
                documents and justify a Band C designation in terms of Item 4.13 of
                the Schedule to the High Court
Rules for their preparation;


        d)      There have been, what in essence are, appearances at mention
                hearings
for which the allowance is .2 of a day, on two occasions,


        e)      Although the filing of memoranda in support of claims for costs may
                well justify an allowance, in this
case, because both parties have
                endeavoured to open up a much wider area of dispute which really is
            
   unhelpful to the determination of costs on the r 301 application, I
                make no separate allowance for memoranda.

[15]   The analysis carried out in the above paragraph indicates an appropriate
quantum of costs on the application at $3,480.
I accept counsel for the intend
defendants advice that the intended defendants are being charged on the normal fee-
paying basis.


Conclusions


[16]   I see no other considerations that are required to be taken into account in this
case. Whilst I do not overlook
the fact that the notice of opposition gave a sworn
answer to the issue which was troubling the intending plaintiff, one cannot escape
the fact that that position was accepted and the application was then withdrawn so
that the second ground could not be examined.
That fact, together with the fact that
the non-existence of the document had already been signalled before the application
was filed
leads me to the conclusion that there should be no reduction in the costs,
the quantum of which I have already analysed.


Orders


[17]   I order that the intending plaintiff pay the intended defendants' costs in the
sum of $3,480 together with disbursements
as fixed by the Registrar.




                                                            _____________________

              
                                                               JA Faire
                                                        
              Associate Judge