Allison v JJS Cars Limited [2013] NZHC 2680 (15 October 2013)

Last Updated: 5 November 2013

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-2513 [2013] NZHC 2680

BETWEEN JENNIFER JANE ALLISON Plaintiff

AND JJS CARS LIMITED Defendant

Hearing: (on papers) Appearances: J Foley for plaintiff

A Kashyap for defendant

(on papers) Judgment: 15 October 2013

JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE [Judgment on application to recall costs order]

This judgment was delivered by me on

15.10.13 at 4pm, pursuant to

Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

_{Date...............}

ALLISON v JJS CARS LIMITED [2013] NZHC 2680 [15 October 2013]

[1] The plaintiff has applied for an order recalling the costs judgment that I gave in this matter on 25 September 2013.

[2] In essence the plaintiff was ordered to pay costs when it discontinued liquidation proceedings that she brought.

[3] The brief background to the matter was that the plaintiff purchased a car the price for which was partly financed by a trade in worth $1,000 (the total debt that the plaintiff claimed to be owed was $2,700). The car that she received under the sale was said to be defective and the defendant apparently agreed that it was under an obligation to her in the sum of $1,700. . The defendant declined to pay anything in regard to the $1,000 value attributable to the trade in car because of its contention that the car had defects. The parties agreed that that issue should be dealt with in the Disputes Tribunal. The result was that while the parties came to an agreement that the defendant had some liability to the plaintiff the parties were unable to agree concerning the balance of the amount owed. For jurisdictional purposes if there was

$1,000 still owing to the plaintiff, it would be possible for the plaintiff to proceed with a liquidation application. If there was no amount owing or an amount under

$1,000 it would not be possible for the plaintiff to obtain the relief that is sought in the proceedings.

[4] Therefore the agreement to refer the matter to the Disputes Tribunal meant that this Court would not have been in any position to conclude whether or not there was a debt for $1,000 owing to the plaintiff and therefore would not have been able to make an order for the winding up of the defendant.

[5] The plaintiff says that my judgment directing that the plaintiff pay costs of the liquidation on the discontinuance ought to be recalled for various reasons. The main ground upon which the plaintiff seeks recall is that it is alleged that when another Associate Judge was dealing with this matter she gave an indication that if the parties came to an agreed conclusion in the proceeding it would be possible that the plaintiff might obtain an order for costs against the defendant – that is the exact opposite result to what occurred in the event. However, two things are to be noted

about this supposed intimation of view. The first is that it is not recorded anywhere on the file in the proceeding. Secondly, the plaintiff accepts that this was no more than a provisional expression of view.

[6] The result is that so long as the parties failed to come to an agreement on all aspects of the dispute between them including costs, the issue of costs was always going to be one which a Judge would determine exercising a discretion under the High Court Rules. I am unable to regard the alleged intimation of view by the Judge who dealt with this matter earlier as bringing the case within the third category of cases described by Wild CJ in Horowhenua County v Nash (No. 2).¹ I therefore

_{decline to recall the judgment.}

J.P. Doogue

_{Associate Judge}

¹ Horowhenua County v Nash (No. 2) [1968] NZLR 632.