BODY CORPORATE NO. 161334 AND ANOR V AUCKLAND CITY COUNCIL HC AK CIV-2005-404-1646

BODY CORPORATE NO. 161334 AND ANOR V AUCKLAND CITY COUNCIL HC AK CIV-2005-404- 1646 21 July 2008IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV-2005-404-1646BETWEEN BODY CORPORATE NO. 161334 Plaintiff AND BRIAN MAUDE AND ORS Second Plaintiffs AND AUCKLAND CITY COUNCIL Defendant AND MAINZEAL PROPERTY & CONSTRUCTION LIMITED First Third Party AND PAXTON CONSTRUCTION MANAGEMENT LIMITED SecondThird Party AND KITCHENER INVESTMENTS LIMITED Third Third Party Hearing: (on papers) Judgment: 21 July 2008 at 3 p.m.JUDGMENT OF ASSOCIATE JUDGE DOOGUE [on Costs]This judgment was delivered by me on21.07.08 at 3 p.m, pursuant to Rule 540(4) of the High Court Rules. Registrar/Deputy Registrar DateCounsel:Grimshaw & Co, (H Harkness), P O Box 6646, Auckland - by facsimile: 377 3305 Heaney & Co Solicitors, (A Fistonich), P O Box 105391 - by facsimile: 367 7009[1] I have counsel's memoranda dated 9 May 2008 (plaintiffs) and 16 May 2008 (defendant). The memoranda are concerned with the quantum of costs that the plaintiff should pay on an application for further and better discovery that the defendant filed 25 May 2007. The plaintiffs contest that costs are payable. The principal dispute centres on whether certain conferences which were convened were for the purposes of progressing the application for further and better discovery. [2] The approach that I understand the defendant takes is that if any particular conference was convened to consider, inter alia, progressing the defendant's application, then the defendant should have costs associated with that conference. I accept that there has been no detailed discussion between the Court and counsel about that aspect of the matter. However it is necessary to keep the amount of time and effort which is to be channelled into dealing with costs application in proportion to what is at stake. I do not propose to call for any further memorandum on this point but to deal with the costs issue in a relatively summary way. I therefore move directly to my conclusion which is that the proper approach to apply is that if any particular conference was convened partly to review the matter of the discovery application and partly for other matters, then a proportionate part of the costs of the conferences considered as a whole should be ordered to be paid on the termination of the defendant's application for further and better discovery. [3] I therefore deal now with each of the conferences for which the defendant says it should have costs and I will make a brief comment on each one. After that process has been completed I will set out my conclusions on the matter of costs.Conference 22 June 2007[4] This conference appears to have been solely concerned with the matter of the defendant's application. However, a joint memorandum was filed and no appearance was apparently required. The Judge noted that the further documents had been located:which may resolve the defendant's application- but that an adjournment was required.[5] I conclude that this conference was connected with the application and was called solely in connection with that application.Chambers List 20 July 2007[6] The plaintiffs apparently agree that costs for that conference can be fixed at $640. That is accepted by the defendant and no further comment is required.Case Management Conference 11 October 2007[7] This conference was attended by plaintiffs, defendant and third third party with no appearance being entered for first third party or second third party. Matters discussed at the conference included the defendant discontinuing against the first third party and, apparently, the second third party. There was also discussion about the defendant seeking time to review documents obtained from the liquidators of the third third party. Associate Judge Abbott also mentioned in his minute the application for further and better discovery which he thought looked as though it would be resolved without need for a hearing. There was also a discussion about settlement and trial. [8] The conference was adjourned till 5 February 2008 to, inter alia:Review the position of the claim between the defendant and the third party, to review the estimate for trial- and other matters. [9] The issue of the application for further and better discovery was therefore one of the subjects of the conference, but one only.Following conferences on 22 November 2007 and 30 January 2008[10] The matter came back before the Court on 20 March to review a direction that Associate Judge Abbott had earlier made that the defendant was to file:Any amended (or new) application for discovery that might be required after provision of further documents by the plaintiffs, by 19 March 2008.[11] The Judge noted that the plaintiffs had still to provide further documents and given that, the Judge adjourned the conference to 8 April 2008 for the apparent purpose of reviewing whether any amended or new application for discovery was going to be required. The Judge adjourned the matter to 8 April 2008. [12] In my view, this conference in substance was concerned with the matter of the plaintiff's compliance with its obligations for discovery. Therefore, in broad terms, there was a connection between that conference and the application by the defendant for further and better discovery. It seems that was the only subject that was discussed. That is to say the conference was taken up with progressing the matter of further and better discovery matters which were incidental to the application before the Court. [13] However the conference seems to have been conducted on the basis of a memorandum that counsel for the defendant filed. There does not seem to have been any actual appearance by counsel (whether to take part by telephone in a case management conference or in person). The plaintiff having noted these matters says that an award of costs to appear at the conference would exceed the actual costs incurred by the defendant. [14] My assessment is that the defendant should have some costs relating to this conference but they should be restricted to preparation of the memorandum.Chambers List 8 April 2008[15] The parties filed a joint memorandum prior to this conference. The matters that were to be discussed included discovery and discontinuance of the proceeding by some of the plaintiffs. In my view, the continued progressing of the application for further and better discovery was a matter that substantially contributed to the necessity to convene the conference.[16] I note that any costs would be limited to the participation of the defendant's counsel in preparation, execution and filing of the joint memorandum.Chambers List 6 May 2008[17] There were two separate matters dealt with at this mention. One was the costs of the various conferences relating to the application for further and better discovery. As well, the Court had to deal with an application by the plaintiffs to join some additional parties as second plaintiffs. [18] It was now common ground between the parties that by the date of this mention, the application for further and better discovery had run its course because discovery had been attended. The only residual matter was the question of costs on that application. [19] In principal, the defendant should not have an award for costs on an appearance made in order to argue the question of costs. Therefore, the appearances on 6 May 2008 should not give rise to any costs liability on the part of the plaintiff.Summary[20] As I understand it, the application for further and better discovery was the sole reason for one conference at which counsel appeared. The defendant should have costs for that conference. [21] There was one conference where the application for further and better discovery was one of the issues dealt with and at which counsel appeared. [22] There were two conferences involving the applicant which were resolved by joint memorandum, the costs must be limited to the preparation etc of that memorandum. [23] The last mention on 6 May would not give rise to any costs order at all.[24] In my view substantial justice would be done by allowing the defendant: a) the costs of appearing at the conference that I referred to in [20]. b) The costs of participating in the preparation of joint memorandum for the conferences referred to at paragraph [22]. [25] No other costs should be allowed. [26] The parties should now settle the form of an order for costs on a 2B basis in accordance with this judgment for approval by the Registrar. _____________ J.P. Doogue Associate Judge