Mudgway v D M Roberts Limited [2012] NZHC 1981 (9 August 2012)

Last Updated: 22 September 2012

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV-2012-470-114 [2012] NZHC 1981

BETWEEN MARK SHANE MUDGWAY AND LEE ANN MUDGWAY

Plaintiffs

AND D. M. ROBERTS LIMITED Defendant

Hearing: 22 May 2012

Appearances: Mr Fisher for plaintiffs

Mr D Simpson for defendants

Judgment: 9 August 2012

JUDGMENT OF ASSOCIATE JUDGE DOOGUE [on Costs]

This judgment was delivered by me on

09.08.12 at 2 p.m., pursuant to

Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date...............

Counsel:

Mr M Fisher, Erskine Chambers, Auckland – [e-mail]

Mr D M Simpson, Simpson Aspen Law, Tauranga – [e-mail]

MUDGWAY V D. M. ROBERTS LIMITED HC TAU CIV-2012-470-114 [9 August 2012]

[1] I refer to the memoranda filed on the following dates by the plaintiffs (13

July 2012) and by defendant (13 July 2012); plaintiffs reply (19 July 2012) and defendant’s commentary on plaintiff’s reply (23 July 2012). The question of which party of either should bear costs should be made on the basis that it reflects the overall justice of the case. The defendant apparently regards it as significant that at the hearing the plaintiffs sought declarations which were in different terms from those sought in the original statement of claim. My view is that such differences as they were did not affect the substance of the plaintiff’s claim. The defendant is the party which failed with respect to the proceedings: Rule 14.2(a).

[2] There does not seem to be any dispute that costs category 2B is appropriate. The defendant has not objected to any aspect of the calculation of costs on a 2B basis which the plaintiff’s counsel put forward and the calculation appearing to be in accordance with the Rules, I order that the defendant is to pay costs in the sum of

$18,009.50. The same comments apply to the disbursements which were claimed of

$1,536.80. They to seem to be reasonable and I make an order that the defendant is to pay the disbursements as claimed.

J.P. Doogue

Associate Judge