Dawson & Maudsley Limited v McClune HC Rotorua CIV-2011-463-000145 [2011] NZHC 1212 (12 October 2011)

Last Updated: 23 October 2011

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

_{CIV-2011-463-000145}

BETWEEN DAWSON & MAUDSLEY LIMITED Appellant

AND JOAN PATSY MCCLUNE, TERENCE JAMES HIBBITT, JOHN ROBERT MCCLUNE AND WALTER HOLLAND MILICICH AS TRUSTEES OF THE MCCLUNE PROPERTIES TRUST Respondents

Hearing: On the Papers

Counsel: J H Olphert for Appellant

B P Rooney for Respondents

Judgment: 12 October 2011

JUDGMENT OF WHATA J ON RELIEF

This judgment was delivered by Justice Whata on

12 October 2011 at 4.30 p.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors:

Olphert & Associates Ltd, PO Box 1717, Rotorua 3040

Neumegen & Co., PO Box 99 680, Newmarket, Auckland

Copy to:

B P Rooney, PO Box 3320, Shortland Street, Auckland

DAWSON & MAUDSLEY LIMITED V MCCLUNE AS TRUSTEES OF THE MCCLUNE PROPERTIES TRUST HC ROT CIV-2011-463-000145 12 October 2011

[1] At paragraph [56] of my judgment dated 12 July 2011, I provided the appellant and the respondents with an opportunity to agree on relief and otherwise file submissions. The parties filed submissions. The basic point in contention between them is whether or not the order of the District Court that the appellant pay

$23,362.50 relating to a claim by the respondents for costs for enforcing their right to require payments due under the lease.

[2] I released an interim judgment on relief, indicating my view that the District Court was unlikely to be able to revisit that order given that it was not specifically appealed, but that it was unrealistic to suggest the rent review element of the case was not a primary, if not the most significant aspect of the issues between the parties insofar as it concerns those costs.

[3] The appellant and the respondents have filed further submissions. The respondents are immovable. The respondents insists that the costs award was not appealed and that:

8. The respondents strongly object to any interference with the award of damages referred to in paragraph 8 of the 7 September 2011 judgment, all the more so if that happened without reference back to the judge.

9. This was not a point on appeal and the respondents have had no chance to develop oral submissions on the point.

[4] The respondents then outline a number of matters that they say they would need to be fully ventilated if the issue was to be revisited.

[5] I am not going to waste further time setting out the respondents’ argument on this. I note that the appellant says that I have jurisdiction based on the broad powers available to a Court on appeal, citing Austin Nichols & Co Inc v Stichting Lodestar.[1]

[6] The appellant has further indicated in his submissions that the claim in relation to the rental arrears is inextricably linked to the claim in relation to the legal costs in respect of pursuing and defending the landlord’s position. The appellant

_{says in those circumstances it is entirely appropriate for me to amend the award.}

[7] Regrettably, given the vehement opposition of the respondents to having this matter resolved by me, and given that counsel is correct that the matter has not been fully ventilated, and cannot really be ventilated before me without substantial argument and review of the record, I am not really in a position to properly amend the award.

[8] I wish to indicate, however, given that I am going to refer the matter now back to the District Court, any costs award that touches and concerns the rental arrears should logically be proportionate to the success achieved by the respective parties. As the parties will be aware, the dominant principle of any costs award is that costs should follow the event. On the question of damages arising from the dispute as to rental arrears, it should equally follow that the successful party on that issue should not be penalised. But I have to accept the indication given by counsel for the respondents that there are exceptional circumstances here that would warrant a different outcome. I am therefore not comfortable to exercise what would otherwise appear to be a routine discretion, and must rely on the District Court, who had all argument before it, to resolve the matter.

[9] I therefore direct that:

(a) The judgment of the District Court in respect of the rental arrears be set aside; and

(b) This matter be referred back to the District Court specifically to consider whether it is appropriate to amend the costs award referred to at paragraph [1] in light of my judgment.

Costs in the High Court

[10] While this outcome is relatively straightforward, the parties have elected to contest this matter on a robust basis demanding careful attention. The appellant has succeeded and should have its costs in this Court.

[11] Accordingly, there shall be costs in this Court in favour of the appellant on a

_{2B basis together with disbursements to be fixed by the Registrar.}

Whata J

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[1] Austin Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].