Cynortic Water Systems Limited v Saunders Robinson Brown [2016] NZHC 2864 (30 November 2016)

Last Updated: 9 December 2016

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2016-409-000111 [2016] NZHC 2864

BETWEEN	CYNORTIC WATER SYSTEMS LIMITED First Plaintiff MARK JAMES SULLIVAN AND SUSAN MARY SULLIVAN Second Plaintiffs
AND	SAUNDERS ROBINSON BROWN Defendant

Hearing:	(Dealt with on the papers)
Counsel:	D G Hurd for First and Second Plaintiffs A Eckford for Defendant
Judgment:	30 November 2016

JUDGMENT OF GENDALL J (As to Costs)

[1] By application dated 24 August 2016 the plaintiffs sought three orders from this Court:

(a) An order that a priority fixture be allocated for the substantive determination of this proceeding.

(b) An order that further and better discovery be provided by the defendants within categories set out in the schedule to the application.

(c) An order for inspection of the defendant’s document numbered

AM1431 in its affidavit of documents for which privilege had been claimed.

CYNORTIC WATER SYSTEMS LIMITED v SAUNDERS ROBINSON BROWN [2016] NZHC 2864 [30 November 2016]

[2] That application was heard before this Court on 21 September 2016.

[3] On that date I issued a minute which effectively disposed of the first application for a priority fixture. So far as the second application was concerned, counsel for the plaintiffs confirmed that the discovery question had now been resolved and that application fell away. As to the third application concerning inspection of the defendant’s document for which privilege was claimed, I directed that the document in question was to be provided to me for inspection and I would give my decision on that application thereafter.

[4] The document AM1431 was provided to me and on 1 November 2016 I gave my judgment confirming that the document AM1431 did attract litigation privilege and in terms of s 56 Evidence Act 2006 was not properly disclosable to the plaintiffs.

[5] On 14 November 2016 counsel for the defendant filed a memorandum in this Court indicating that the defendant sought costs from the plaintiff with respect to these applications.

[6] Counsel for the plaintiff responded by memorandum dated 18 November

2016 suggesting that as each party had effectively succeeded here on one aspect of the applications before the Court, with the third aspect not having to be determined, costs should simply lie where they fall and no order be made here.

[7] I now turn to consider that costs application.

Priority fixture

[8] So far as the first application for a priority fixture was concerned, no order was finally made for such. Notwithstanding this, it is clear that I was able to find a hearing time for this matter commencing 27 February 2017 which the parties accepted. It is true that fixture was shortly thereafter vacated, I understand, because of the unavailability of one counsel and the matter has now been set down to commence on 1 May 2017.

[9] Effectively, therefore, it is said that an early fixture was provided, even though no final decision was made on the priority application itself.

[10] On this aspect, I find that in a general sense the priority fixture application neither succeeded nor failed. The original 27 February 2017 date for hearing of this matter was a reasonably early date to cope with the situation described to the Court by the plaintiffs.

[11] I am satisfied therefore that no costs order should follow with respect to that particular application.

Application for further and better discovery

[12] On this, the plaintiffs contend that the application effectively succeeded as the defendant had agreed to discover the documents in question, which were Mr Marsh’s trial notes. The plaintiffs claim these ought to have been discovered in the first place. So far as other documents are concerned, the plaintiffs say they accepted the assurance from the defendant that it had no documents sought in its control.

[13] Although counsel for the defendants in their submission suggest the plaintiffs’ discovery application was premature in that it failed to give the defendant adequate time to respond to earlier requests and that, in any event, its success was extremely limited, I take the view that, again, the just conclusion is that no order for costs should be made with respect to this further and better discovery application.

Application for inspection of privileged documents

[14] Following inspection of this particular document AM1431 held by the defendant, I determined that the claim to privilege was reasonably made and I upheld this. Thus, the defendant states here that it has been wholly successful in opposing inspection of this document and therefore they should receive an award of costs on the simple basis that costs should follow the event.

[15] The plaintiffs oppose any award of costs being made in large measure because they say the plaintiffs had suggested the relevant material be provided on a counsel only basis for review to determine whether counsel for the plaintiffs agreed that privilege attached to the document. This, however, did not occur it seems, in part perhaps, because the defendant suggests the very fact of producing the document to counsel may have indicated that privilege was waived. This is disputed by counsel for the plaintiffs who maintained that the sensible and pragmatic approach in this case would have been the one they suggested, that the document be made available initially on a counsel only basis. If further proceedings were required because of a disputed privilege claim, then that was another matter, but here, because of the defendant’s stance, matters did not proceed to that point.

[16] This particular costs claim, in my view, is reasonably finely balanced. It is true that the defendants have succeeded in their claim to maintain privilege for this document AM1431. But against that, I am of the view that the plaintiffs’ pragmatic suggestion (rejected by the defendant) that the document could have been made available on a counsel only basis which may well have obviated the need for the disputed hearing, has some merit. On balance, and in the overall interests of justice in this matter, I find that costs with respect to the application for inspection of the document confirmed as privileged should lie where they fall.

[17] For all these reasons there is to be no order made as to costs. Costs are simply to lie where they fall.

...................................................

Gendall J

Solicitors:

Bill Dwyer, Christchurch

Parker Cowan, Queenstown

Copy to:

David Hurd, Auckland