Ayers v Izard Weston [2018] NZHC 975 (8 May 2018)

Last Updated: 21 May 2018

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2017-409-000922 [2018] NZHC 975

BETWEEN	DANIEL FRANCIS AYERS Applicant
AND	IZARD WESTON Respondent

Hearing:	(Determined on the papers)
Judgment:	8 May 2018

JUDGMENT OF GENDALL J

(As to Costs)

[1] On 26 March 2018 the appellant Mr Ayers filed in this Court a Notice of Discontinuance of this proceeding.

[2] An issue of costs has now arisen.

[3] On the question of costs, in a minute I issued in this proceeding dated 26 March 2018, I noted that the defendant sought category 2B costs up to and including Mr Ayers’ discontinuance together with certain disbursements.

[4] In that minute I made certain directions. The plaintiff was to file and serve his memorandum on costs by 11 April 2018 and counsel for the defendant was then to have until 18 April 2018 to file and serve his memorandum in response. Both memoranda were then to be referred to me for decision on the question of costs.

[5] Then, on 19 April 2018, the applicant Mr Ayers having failed to file any memorandum on costs, I issued a further minute in this matter. In that minute I noted

AYERS v IZARD WESTON [2018] NZHC 975 [8 May 2018]

that the appellant had failed to comply with the earlier direction but, notwithstanding this, I gave him until 5 p.m. on 27 April 2018 to file and serve his memorandum on costs in response to the respondent Izard Weston’s claim for costs here.

[6] In that minute, I also extended the time for the respondent’s reply until 5 p.m. on 4 May 2018.

[7] It is now 7 May 2018.

[8] Counsel for the respondent has emailed the Court to confirm that the applicant Mr Ayers has once again failed to file and serve any memorandum on costs in response to the request by the respondent Izard Weston for an order for costs. Counsel for the respondent has gone on to note in his email that on Friday 27 April 2018 this Court made an order adjudicating Mr Ayers bankrupt. The respondent accordingly requests now that the outstanding issue of costs on Mr Ayers’ discontinuance of this proceeding is addressed.

[9] What is clear from matters arising in this proceeding is that Mr Ayers has given no valid and supported reason for his discontinuance of this proceeding on 26 March 2018.

[10] Rule 15.23 High Court Rules addresses the issue of costs on a discontinuance. It states:

15.23 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.

[11] Here, as I have noted, the respondent Izard Weston simply seeks an award of costs up to the date of this discontinuance on a category 2B scale basis together with appropriate disbursements. No opposition to this application has been effectively advanced by the applicant. Nor, as I have noted, has he provided any explanation of matters here.
[12] Under these circumstances there can be no question, in my view, that in terms of r 15.23 the applicant must pay the respondent reasonable costs and disbursements on this proceeding.

[13] An order is now made therefore that the applicant is to pay to the respondent the respondent’s costs on this proceeding up to the date of discontinuance on a category 2B basis together with reasonable disbursements, each as approved by the Registrar.


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

Gendall J

Solicitors:

Izard Weston, Wellington

Copy to the Applicant Mr Ayers